The D.C. government might have a secret weapon in its battle with the gun industry: an existing law that says gun makers and dealers can be held financially responsible for injuries or deaths caused by their products.
The District, which sued the industry on Jan. 20, is the only municipality in the country with such a law, which made it onto the books only after the machinations of a former council member and a bureaucratic bungle by Congress.
The D.C. Assault Weapons Manufacturing Strict Liability Act of 1990 allows plaintiffs to sue gun companies and dealers for damages from injuries or deaths that resulted from assault weapons or machine guns. They can do so without having to prove fault on the part of manufacturers or dealers -- and without having to prove that the weapon was defective.
The assault weapons act became the key claim in the District's suit against 23 gun manufacturers and two distributors in D.C. Superior Court.
"D.C.'s strict liability act is a potent weapon available to this city and something that other cities do not have," says Dennis Henigan, director of the Center to Prevent Handgun Violence's Legal Action Project, which represents 23 cities suing the gun industry and is co-counsel to the D.C. suit.
More than 30 cities and counties have filed suit against the gun industry.
Most, including the District, are claiming negligent distribution and public nuisance. But these legal theories behind the cases have not held up well in the trial courts. Three cases have already been dismissed, and at least one has been whittled down.
D.C. officials hope its strict liability statute will give its suit backing and allow the recovery of several million dollars paid for the Medicaid costs of shooting victims.
"The only strict liability argument other jurisdictions can make is [based on] common law," says Walter Smith, the former special deputy corporation counsel who helped put together the D.C. suit. "We have a statute. It gives the lawsuit teeth, meaning, and significance."
The D.C. gun suit is a test run for the law, on the books since 1991 but never before used in a civil action, according to several D.C. civil lawyers.
Under the statute, all the District has to do to prove its case is show that a manufacturer's gun caused injury or death.
Lawyers for the gun industry, however, argue that the D.C. law wouldn't apply to any of their products because most guns cannot be classified as either machine guns or assault weapons.
"Even if there were a defendant -- and they haven't found any that I'm aware of -- whose product was covered by the act and if that gun was brought into the District illegally or criminally, it would be unconstitutional to attempt to try to apply the act to that product," says James Dorr, a partner at Chicago's Wildman, Harrold, Allen & Dixon who is representing gun manufacturer Sturm, Ruger & Co., one of the defendants in the D.C. suit.
Tort liability expert Victor Schwartz of D.C.'s Crowell & Moring says the statute could lead to a dangerous precedent.
"Under the same theory, liquor companies could be held liable for the harm caused by drunk drivers," says Schwartz, a defense lawyer not involved in any of the gun suits.
WHAT'S A MACHINE GUN? There are also questions as to how many guns fall under the category of "machine guns" -- although the D.C. statute appears to be very broad.
The law defines machine gun as any firearm -- automatic or semiautomatic -- that shoots, or can be readily converted or restored to shoot, more than one bullet with a single pull of a trigger, or that can fire more than 12 rounds of ammunition without manual reloading. Some gun control advocates say it applies to nearly every handgun recovered in the District.
"Any pistol can hold over 12 rounds," says Joshua Horwitz, executive director of the Firearms Litigation Clearinghouse.
According to the suit, between August 1997 and July 1998, D.C. police recovered 3,292 firearms used in crimes -- many that they consider assault weapons or machine guns.
D.C. officials claim that the city has spent millions of dollars treating victims of gun crimes, though the city has yet to provide exact figures.
In a city where Congress has the last word on any bill the D.C. Council and mayor approve, it is almost remarkable that the strict liability act ever became law. Proponents of the statute say the credit goes to former D.C. Council Chairman David Clarke, who died in 1997.
In 1990, Clarke introduced the strict liability bill, which originally was written to apply only to assault weapons. It easily passed the council and was signed into law by Mayor Marion Barry Jr. It immediately sparked the ire of lawmakers on Capitol Hill.
Rep. Thomas Bliley Jr. (R-Va.), then ranking minority member of the House Committee on the District, threatened to withhold city appropriations if D.C. leaders didn't repeal the legislation.
In early 1991, the D.C. Council, hoping to defuse the congressional budget
threat, enacted legislation to repeal the act. But Clarke, who had lost his seat on the council when he made a failed bid for mayor, had gathered enough support to force a referendum on the matter. In November of that year, city voters overwhelmingly decided to keep the D.C. assault weapons law on the books.
The original strict liability act had become law.
Bliley sued city officials in U.S. District Court for the District of Columbia, claiming that Congress was denied its constitutionally mandated 30-day review period due to the referendum. In May 1992, Judge Gerhard Gesell ruled that Congress had had ample time to review the law. That decision was upheld by the U.S. Court of Appeals for the D.C. Circuit two years later.
Clarke scored another victory for gun control advocates in 1994, when he amended the law to include machine guns -- an addition that Congress never bothered to review.
"To me, the big story is the ghost of Dave Clarke," says Horwitz, who worked with Clarke on the legislation and referendum. "Clarke completely outsmarted Congress."
That doesn't mean Congress doesn't have any options.
For starters, lawmakers can keep the District from going ahead with the suit by forbidding officials from using city money to fund the litigation.
They could also move to block the suit in its entirety by offering up a bill, but Congress would need approval from President Bill Clinton.
At least one House member is attempting such a move.
"We are drafting a legislative response to the D.C. gun lawsuit," says Brad Alexander, a spokesman for Rep. Bob Barr (R-Ga.), who sits on the House Government Reform and Oversight Committee, which oversees the District.
Even if Congress prevents the D.C. Office of Corporation Counsel from fighting the suit, John Payton of D.C.'s Wilmer, Cutler & Pickering is ready to take the lead.
One member of the city's legal team, who asked not to be named, says D.C.'s suit is exactly the kind of action the gun industry has been calling for.
"The whole public relations defense [on the part of the gun industry] is that this whole area should be resolved legislatively," says this lawyer.
"Here, the D.C. legislators have done exactly that.
"We're not asking the judge to be creative," this lawyer adds. "We're just asking him to enforce what the council has done."
