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Over the years, the gun industry has successfully claimed that it isn’t liable if its products are used to commit crimes. But in recent months, this previously impervious defense has begun to develop some chinks. In three separate suits, shooting victims and their relatives have secured cash settlements from several gun sellers and one gun maker. The settlements are the first of their kind, and appear to be driven by a concern that the industry is losing ground on another front — government suits that maintain the firearms business has created a “public nuisance.” In the past year three of these actions have been cleared for trial, with the first set to begin next spring. The suits by shooting victims and local governments use the same legal argument — that is, the gun industry knows its business practices allow weapons to fall into the hands of criminals. These developments have heartened gun opponents otherwise discouraged by the September 13 expiration of the federal assault weapons ban. Dennis Henigan is especially cheered by the settlements in the victim suits. The legal director of the Brady Center to Prevent Gun Violence, a nonprofit group based in Washington, D.C., he served as co-counsel in each of the three suits. “I’ve been representing gun violence victims and local governments bringing these suits for 15 years, and suddenly in 90 days there are three major settlements,” Henigan says. “They are really very dramatic breakthroughs.” Jeff Reh disagrees. He’s the general counsel for Accokeek, Maryland-based Beretta USA, Corp. Referring to the long string of losses by gun foes, Reh says, “When you have such a consistent record of failure, then any favorable development seems to be a success.” Still, it’s impossible to deny the landmark status of the September 9 settlement won on behalf of eight victims of the 2002 Washington, D.C., sniper attacks. Bull’s Eye Shooter Supply of Tacoma, Wash., agreed to pay $2 million; Bushmaster Firearms, Inc., of Windham, Maine, settled for $550,000. Bull’s Eye was the source of the Bushmaster assault rifle used by snipers John Allen Muhammad and Lee Boyd Malvo. The agreement marked the first time that a U.S. gun maker opted to settle a suit stemming from gun violence, and only the third time that a gun seller had reached a similar settlement, according to industry executives and gun opponents. In their suit, the D.C. sniper victims claimed that Bushmaster and Bull’s Eye intentionally did business in a way to circumvent laws designed to prevent the sale of guns to criminals. According to the plaintiffs’ complaint, federal audits showed that Bull’s Eye had failed to keep track of hundreds of guns, including the Bushmaster rifle used in the D.C. shootings. Brian Borgelt, who owned Bull’s Eye when the Bushmaster rifle went missing, says the gun was stolen from his store. He says that Bull’s Eye admitted no fault in the settlement, and that he didn’t change his “business model” as a result of the suit. Bushmaster declined to comment for this article, but Kelly Corr of Seattle’s Corr Cronin — who defended the company in the case — says his client is a small family-owned business that just wanted to end the litigation. The D.C. sniper settlement was preceded by two other cases in which gun sellers settled with shooting victims. In the first, Will Jewelry & Loan of Charleston, W.Va., agreed to pay $1 million to two Orange County, New Jersey, police officers who were seriously wounded by a robber. The Charleston store sold the weapon used in the incident to a “straw buyer,” a gun trafficker who in turn illegally resold it. The settlement was approved by a West Virginia state judge on June 23. The plaintiffs, who have since left the police force, are still pursuing their claim against Southport, Conn.-based Sturm, Ruger & Company Inc., which made the gun used in the attack. The former officers contend that Sturm, Ruger should have cut off sales to Will Jewelry because according to federal statistics, it was among the top 1 percent of dealers nationwide in number of guns sold that had been traced back to crimes. Sturm, Ruger president and GC Stephen Sanetti did not respond to requests for comment. But the company has previously said in court and to the media that it sold the gun legally, which it is not responsible for the wrongful use of firearms by third parties, and it has no duty to limit or stop legal sales to any dealer. In the second settlement reached by a gun seller in a victim suit, Sauers Trading of Williamsport, Pa., agreed to pay an undisclosed amount to a Philadelphia woman on August 24. The plaintiff’s 7-year-old son was accidentally killed when a group of children found a handgun that had been dropped under a car by a suspected drug dealer. Sauers Trading had sold the weapon to a straw buyer, who then sold it on the street. Given that gun makers and gun sellers have long refused to pay anything in victim suits stemming from criminal acts, what’s prompted the recent spate of settlements? According to the Brady Center’s Henigan, it’s because the industry has suffered some recent setbacks in the public nuisance suits filed by states, counties and cities. Even though all but five of the 33 government actions filed since 1998 have been dismissed, they’ve been costly to defend, says Lawrence Keane. He’s VP and GC at the National Shooting Sports Foundation, an industry trade group that’s also been named as a defendant in some of the public nuisance actions. Keane estimates that the gun industry has spent a total of $175 million so far on legal fees for what he calls “these frivolous lawsuits.” And the liability risk posed by the suits has led insurers to raise their rates for gun makers by 200 percent to 400 percent, he says. Plus, Keane remains worried about the five nuisance suits still alive, which he says “are threatening the industry.” Two of these actions — by Chicago and St. Louis — have been dismissed but are on appeal to their state’s supreme court. The remaining three — one by Gary, Ind.; one by a group of California municipalities; and one by New York City — have been cleared for trial. The fact that these cases are proceeding to trial is “a major movement in case law,” the Brady Center’s Henigan says. Should any actually reach trial, it would be a first in gun litigation. New York City’s suit is the first to have a trial date: April 4, 2005. Having dropped its claims for negligence and damages, the city now only seeks an injunction that would force gun makers and sellers to adopt marketing practices designed to close off the flow of guns to criminals and the black market. The gun industry is trying to head off future suits by turning to the legislative process. It’s already persuaded 31 states to pass laws granting gun makers immunity from nuisance suits. And the industry continues to push for a federal law that would give it protection from actions brought by victims of gun violence as well. Though the Protection of Lawful Commerce in Arms Act passed the House, it died in the Senate in March. Reintroducing the bill is a must in the next session of Congress, Keane says: “It is our number one priority.”

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