OK, first caveat. I know that most of those bloggers I generally consider friends and allies and most of those readers who are sympathetic to my pro-Israel rants generally tend to be pretty strong advocates of Second Amendment “rights.†I’m resigned to this. It’s just one of life’s curve balls. So it’s with a great deal of trepidation that I venture into the subject of guns. But frankly, folks, the uproar over last Thursday’s $1.2 million verdict against a gun distributor smacks of hysteria and big time overkill, best epitomized, perhaps, in an essay by major league gun hugger Dave Kopel in National Review Online.
I’m not going to reprint most of Kopel’s diatribe here. No fisking today. If you haven’t already read it, please do. And I will try to respond to a few of Kopel’s “points†below.
Second caveat. Let me assure you that I’m really not a big gun control advocate or supporter. At least not so far. I tend to come down slightly on the regulation side of the argument, but mostly because I’m more offended by the obnoxious tactics and specious arguments of the gun lobby than I am by those of the Brady bunch. And because at a very young age, the effects of gun violence hit much too close to home when a close friend’s father was shot to death in the course of a jewelry store robbery gone wrong (he had a gun – so did they). But I also have friends who are gun enthusiasts and who make excellent, well reasoned arguments for maintaining some perspective and restraint in gun regulation with which I largely tend to agree.
With that said, what first caught my eye in the brouhaha over Grunow v. Valor Corp. was a reference to “frivolous lawsuits.†Otherwise known as “abusive lawsuits.†Ah, yes. One of the favorite rallying cries of the gun lobby. Of course, frivolity and abuse, much like beauty, are often in the eye of the beholder. The problem here is that there actually is such a thing as an abusive lawsuit. And one of the ways you can recognize one is that it usually gets thrown out of court on the pleadings, sometimes with sanctions against the plaintiff. Another way you can tell, if it manages to slip past the silly judge, is that the jury finds for the defendant. Neither of which happened here. Does an occasional frivolous lawsuit stealthily sneak all the way to victory? Of course. But too often, “frivolous†lawsuits tend to be those that the person calling them that doesn’t want to go forward. Ergo, any lawsuit against a gun manufacturer or distributor is, as far as the gun lobby is concerned, “frivolous.â€
Then there’s the red herring of the civil jury’s failure to find the killer in this case, 13-year-old Nathaniel Brazill, liable for negligence in the murder. Or, in Dave Kopel’s words, In apportioning responsibility for Grunow's death, the civil jury found that Brazill bore absolutely no responsibility, because of the judge's instructions which prevented them from apportioning liability to Brazill unless the jury found that Brazill's killing was accidental.
Just a teensy bit misleading, that. This aspect of the case has many knickers in a huge wad and I've come across several blog rants about it without even looking very hard. But since the bloggers in question don’t appear to be lawyers, they get a pass. (Not so David B. Kopel, Juris Doctor U. Mich. 1985 and one-time adjunct professor of law at NYU.) So here's the thing. This lawsuit was a civil action for negligence which, by definition, is an unintentional act or omission – or – an intentional act or omission that results in unintentional (but foreseeable) harm. Hence, Brazill’s previous criminal conviction for the intentional murder of Mr. Grunow precluded a finding of negligence for the same act, and the judge so instructed the civil jury. This makes sense, if you think about it for five seconds. Brazill got 28 years to life after a much different trial with a much stricter burden of proof and dozens of other safeguards not present in civil courts. I would suggest that he has clearly been obliged to accept full “responsibility†for his act.
(I’ll digress momentarily and parenthetically on this question. Should convicted and incarcerated criminals also be required to compensate their victims monetarily? If so, shouldn’t that perhaps be taken into consideration in determining their sentence? If so, couldn’t that suggest that rich criminals could buy themselves out of jail? We don’t want to go there.)
As for the gun itself, it's alleged by the Brady Center to be a highly concealable, low-quality handgun that consistently ranks among the guns most frequently traced to crime . . . among the top three or four crime guns every year through 2000 [even though it hasn’t been manufactured since 1991] . . . , particularly popular among juvenile offenders.
Kopel claims that depriving poor people of access to such cheap, low-quality guns lacking safety mechanisms is “discriminatory.†This is an interesting argument because it seems to imply, among other things, that the right to possess a gun, perhaps like the right to health care, should be guaranteed to all citizens, but without regard to quality, which is the privilege of the well-to-do alone. To which I can only say, huh?
So far, then, we’re supposed to be outraged about this verdict because a) the convicted murderer wasn’t a defendant in the civil case and b) discouraging gun distributors from distributing cheap, badly made guns will prevent poor people from being able to defend themselves. But we're also told that the jury, for lack of any other deep pocket, aided Mrs. Grunow by taking money from other innocents: the victim of Brazill's theft, a school board which had instituted unusually rigorous security measures, and a wholesaler which sold a lawful product intended to help poor people protect themselves from criminals.
Of course, Mr. Kopel knows full well, having studied this case in some depth, that neither the “victim of Brazill’s theft†(who left a handgun with ammunition in an unlocked bottom dresser drawer while a 13-year-old boy was staying at his house) nor the school board were charged with as much as a dime as a result of this verdict. They weren’t even defendants (supposedly because they had already settled out of court), and therefore they didn’t have any high-priced lawyers arguing their lack of responsibility to the jury. It’s just vaguely possible, in fact, that this is at least part of the reason Valor got away with a measly 5% of the blame.
Finally, we’re told that the verdict will never be upheld on appeal. Kopel cites as “Florida precedent†a case in which an appeals court affirmed the dismissal of an anti-gun lawsuit by a municipality against gun manufacturers. It got thrown out because "governerment entities" can't sue private citizens for the cost of services rendered unless they have "express legislative authorization." Hardly a “precedent†for the reversal of a jury verdict in a personal negligence case. Moreover, as a rule, jury verdicts can only be tossed out as a result of procedural or legal errors at the trial. The presence or absence of such errors will be determined by the appeals court, not by the press or by popular opinion.
“Even so,†says Kopel, “Valor Corporation has been drained of hefty legal fees, and dragged through the courts and the newspapers as if were a wrongdoer.†Imagine that. But he has the answer to this injustice. We need to enact federal Congressional legislation banning lawsuits against the gun industry. That’s part of the “small government,†“states’ rights†stuff that Conservatives are so fond of touting as their prime directive, right? And do we really want more legislation protecting those who get rich selling defective products from ever being required to compensate those who pay the ultimate price for their greed and irresponsibility? Another can of worms.
Well, it's just my opinion, after all. I wasn't there. I don't know if the verdict was justified by the evidence in this case or not. But neither do most of those who have a strong opinion on the subject. What I object to is the assertion that the verdict couldn't have been justified because some people don't like the result. There's much too much of that sort of thing going around these days, on both sides of the great gun debate.
