L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 179, June 24, 2002
"Assume a Meditative Stance"
Picking the Deepest Pocket:
Special to TLE
On June 12, the Ohio Supreme Court voted 4-3 to reinstate a liability lawsuit filed by the city of Cincinnati against a group of American handgun manufacturers, supposedly in an attempt to recoup millions of dollars spent by that city on police, emergency, court, and health care services in response to "gun-related violence."
"Supposedly," since such calculations rarely take into account the compensating benefits to the economy from the reduction in crime and personal injuries attributed to the deterrent effect of law-abiding Americans possessing legal arms for self-defense -- attributed, mind you, by such esteemed researchers as John R. Lott, Jr. and David B. Mustard and David Kopel and Prof. Gary Kleck, among others.
But the more important question here is whether our judges should be allowing any lawsuits to proceed which do not allege fraud, nor careless or willful production of defective products, but which rather attempt to bleed perfectly legal American businesses for the "offense" of manufacturing perfectly legal products.
Such extortionate lawsuits are based, of course, on the theory that the proper, intended, and legal use of those products somehow generates a "cost" to municipalities -- when the truth is that most of those perceived "costs" are actually incurred when cities exceed their constitutional authority, adopting sundry socialized welfare schemes in which taxpayers pony up for the medical care of the indigent (once properly viewed as the exclusive domain of private charity.)
Meantime, even if we did buy into this "financial balance sheet" system of "costing out" our rights and freedoms -- and even if we were to ignore the financial benefits of self-defense firearms in preventing crimes -- can the collectivists really demonstrate that people who choose to smoke and drink to excess or who get into gun battles over drug distribution turf end up costing "society" more through these actions? In fact, the statistics reveal that heavy smokers and drinkers actually tend to die young, saving "society" huge sums "we" would otherwise spend caring for them in their geriatric years, while illicit drug dealers who get themselves shot dead thus spare "us" the millions of dollars it would otherwise likely cost "us" to keep them housed and fed in prison and their offspring similarly on the dole for the rest of their lives.
If we really want to permit a bunch of accountants in green eyeshades to decide which free choices we will still be "allowed," that is.
Lawyers for the gunmakers -- including Beretta U.S.A., Colt's Manufacturing Co. and Smith & Wesson Corp. -- warned the Ohio court that a ruling in Cincinnati's favor could quickly lead to the manufacturers of other legal products being held equally liable.
"Alcoholic beverage manufacturers, who also produce a legal product, would be held liable for misuse of alcohol in the city of Cincinnati," said attorney James Dorr. "The same thing with automobile manufacturers who have a generalized awareness that their automobiles are going to be involved in accidents."
The Ohio justices ignored this sensible warning, instead ruling 4-3 that an appeals court was wrong in dismissing the lawsuit and ordered the case back to Hamilton County Common Pleas Court. Justice Francis Sweeney contended the high court ruling does not imply the state Supreme Court necessarily believes Cincinnati will prevail in its lawsuit, but only that the city had enough facts on its side to be allowed to pursue its claims.
But Chief Justice Thomas Moyer properly disagreed, arguing the alleged injuries that Cincinnati suffered are too far removed from the conduct of the gunmakers to give the city any reasonable right to sue.
"The question is not whether the city can prove that it has suffered damages," the chief justice wrote in dissent, "but whether the city can prove that those damages are attributable to the wrongdoing of the gun manufacturers as opposed to other, independent factors."
Perhaps there will still turn out to be some ironic appropriateness in the fact that the city of Cincinnati's chosen symbol is the winged bronze pig. For even though the Queen City is among 30-odd counties and municipalities nationwide that have sued the firearms industry in recent years, state Supreme Courts in Florida, Connecticut and Louisiana have all dismissed the similar lawsuits there, leaving Cincinnati's as one of the last of these extortion plots still standing.
Those courts took seriously their role as "gatekeepers," charged with preventing overly creative class-action lawyers from using their courtrooms as charnel houses in which law-abiding defendant corporations can be hung on hooks, gutted, and skinned out.
It's all well and good to say, "The suit will probably fail on its merits, eventually." But the justices in Columbus surely know there's little "down side" even for plaintiffs who roll the liability dice and lose -- while in fact most such suits are settled long before they ever reach a jury, as even innocent defendants find little choice but to "cut their losses" and pay these hyenas to go away and stop picking off the weakest of the herd.
A new law that took effect in Ohio last October grants gunmakers immunity from such lawsuits -- but doesn't affect the Cincinnati case because it was enacted after the lawsuit in question was filed.
The new Ohio law strikes a sensible balance -- quite properly, gunmakers would still would be held responsible for damage or injuries caused by defective weapons.
That's what the civil courts are for. To let them be used for anything else -- for extracting a pound of flesh from Anheuser-Busch because certain excessive drinkers develop liver disease, or from McDonald's because some folks who eat too many fries eventually develop diabetes -- is to risk paralyzing our entire economy in a cynical game of "who can pick the deepest pocket"?