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An Ohio court victory by gun manufacturers may not bode well for Atlanta and other cities that are suing the firearms industry. A panel of the Ohio Court of Appeals, affirming a trial court’s ruling, dismissed the city of Cincinnati’s suit against gunmakers and firearms associations. Cincinnati was seeking reimbursement for police, medical and other municipal services provided as a result of negligence in the design and safety of gun features. City of Cincinnati v. Beretta U.S.A. Corp., Nos. C-990729, C-990814, C-990815. About 30 cities, including Atlanta, have brought more than 20 suits against gun manufacturers. The Cincinnati case is the first ruling by an appellate court. Judge Ralph Winkler, writing for a three-judge panel, found that the causation, duty and costs caused by violence from guns were not the responsibility of the manufacturers. “Knives are sharp, bowling balls are heavy, bullets cause puncture wounds in the flesh. The law has long recognized that obvious dangers are an excluded class,” he wrote. “Were we to decide otherwise, we would open a Pandora’s box.” Thomas Fennell of the Dallas office of Jones, Day, Reavis & Pogue represented Colt Manufacturing Co. in the Cincinnati case. Fennell told the National Law Journal, a sister publication of the Daily Report, that he expects the opinion to “be a guiding light, not just in Ohio, but in other states.” He cited two particular points in the judge’s reasoning — remoteness and municipal costs — as noteworthy in their applicability to other cases nationally. Winkler said that the doctrine of remoteness bars recovery for indirect harm suffered as a result of injuries directly sustained by another person. Winkler found that the cities’ claims were clearly contingent on a third party and thus indirect. He wrote, “Attempting to allocate these costs to a gun manufacturer, as opposed to, for example, a knife manufacturer, would be ludicrous.” Fennell also pointed to the judges’ findings on the municipal costs claim, which state that the city of Cincinnati could not pass on to the gun manufacturers the costs of municipal services it has a duty to provide. Recognizing the issue as a public-policy consideration, he quoted from case law, which found that a shift in burden would be a legislative duty rather than a judicial one. Earlier this year, Fulton County Superior Court Judge Thelma Wyatt Cummings Moore issued an injunction precluding any further action in Atlanta’s suit until the state Supreme Court rules on its constitutionality. The state Supreme Court will be asked to rule on two issues. One is whether 1999 state legislation forbidding cities from “regulating in any manner” the selling or ownership of firearms forbids such suits. The other is whether the suit violates a provision in the state constitution that reserves for the state the authority to regulate firearms. Neither the mayor’s office nor Nicholas C. Moraitakis of Mills, Moraitakis, Kushel & Pearson, the city’s lead local counsel in the case, returned calls seeking comment on the Ohio court’s decision. Paul Jannuzzo, general counsel for the Austrian gun manufacturer Glock, says, “The Cincinnati decision was based on honest-to-God legal principles. � We feel very good about our appeal.” Frank Seigel, attorney for Glock and the Belgian gunmaker Browning, filed the injunction in Fulton Superior Court and will argue the case in the state Supreme Court on Sept. 19. “Our situation is somewhat different from Cincinnati. The legal infirmities in the Cincinnati case are separate from our case,” says Seigel. “What we’re saying is that if the city can’t regulate guns in any manner, then why are they trying to regulate my clients through this lawsuit?” Seigel says. “If the law is what we think it is, and the Constitution means what we think it means, then we are confident we will prevail.” Emory University law professor Frank J. Vandall says it is difficult to predict whether the Ohio decision will have any effect on Atlanta’s case. “For Ohio to say that there are lots of alternatives [to holding gun manufacturers liable for gun violence] is na�ve. Our cities are being … abandoned and one reason for this is handgun violence,” he says. “We know this in Atlanta because the middle and upper class live in gated communities. In interpreting the constitutional provisions, I would hope that the members of the Georgia Supreme Court would go for a walk in Atlanta and read the newspapers. They would realize that we are in an epidemic of gun violence,” says Vandall. R Elizabeth Amon of the National Law Journal contributed to this article.

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