In the suit, Morial attempted to force changes in the way handguns are designed and sold and to make manufacturers reimburse the city for millions of dollars spent on police and medical services connected to gun violence. It was the first municipal suit to tackle the gun industry, and 33 mayors across the United States soon followed Morial's example. The tale is told in the new book Outgunned: Up Against the NRA (Free Press) by journalist Peter Harry Brown and attorney Daniel G. Abel.
Brown, an investigative reporter whose previous books include works about Elvis Presley, Marilyn Monroe and Howard Hughes, stumbled on the story of the gun lawsuits in March 1999, while in New Orleans researching lawsuits against the tobacco industry for a televised screenplay. Intrigued, he dropped the screenplay and stayed in New Orleans for six weeks interviewing everyone involved in the gun litigation; he eventually moved here to be close to the story. "This is not an objective book," says Brown. "It tells the positions of the lawyers, and the book is told through their eyes."
Two lawyers involved from the opening salvo were co-author Abel and Wendell Gauthier, who passed away in 2001. Gauthier won notoriety -- along with millions of dollars -- when he spearheaded litigation against big tobacco and forced the industry to settle and pay $206 billion in damages. Gauthier hoped to repeat that success on a more modest scale with the gun lawsuit.
"If you read the New Orleans lawsuit, our initial demands were pretty simple," says Abel. "They were things that the majority of people could agree with. We wanted safety measures that would prevent children from getting hurt. We wanted safety measures that make sure everyone who buys a gun gets a background check, even if they buy it at a gun show, and a limit of one gun purchase per month." And, of course, they wanted a monetary award.
As Outgunned begins to follow the New Orleans lawsuit on its torturous path, another player quickly overshadows the gun manufacturers named in the suit. "The enemy was not the gun companies, but the NRA," says Brown, referring to the National Rifle Association. (An NRA spokesperson stated that the organization hadn't heard of Outgunned and therefore had no comment on the book and its subject matter.)
To combat the New Orleans suit, the NRA heavily lobbied the state Legislature to pass two bills that retroactively prohibited any Louisiana city from suing the firearms industry. Louisiana State Senate President John Hainkel Jr. (R-New Orleans) authored the Senate bill. "I didn't want us to have another plethora of meaningless lawsuits," says Hainkel. "I'm not a real big class action fan. In class action suits, the lawyers get all the money and the plaintiffs get two cans of Gerber's peaches. The lawyers' motivations were purely fiscal."
After a visit to the state Capitol by NRA President Charlton Heston (on the arm of Gov. Mike Foster), both the Senate and the House of Representatives bills passed easily in April 1999. The NRA had refined their legislative tactics in Georgia earlier in the year, where they drafted and lobbied for a similar bill to outlaw Atlanta's suit.
"The NRA makes their money by beating the drum," Abel says. "If they yell, ÔThey're trying to take away your constitutional rights!' then their members start sending more money."
"I think it's safe to say that the NRA is the story," says Brown, noting that the organization succeeded in passing bills and funding gun manufacturers' legal battles. "I think the gun companies would have settled if they hadn't had the NRA stopping them. I would say 50 people in the NRA have kept us from having any gun control, of any kind."
In March 2000, Smith & Wesson broke ranks with other gun manufacturers and reached a settlement with the Clinton administration: the company agreed to put locking devices on its guns and to abide by a code of conduct for the sale and distribution of handguns. In exchange, the company hoped to be dropped from many municipal lawsuits.
Instead, an NRA-inspired boycott brought the oldest gun company in America to its knees in three months. The dispirited and financially troubled company was put on the auction block and sold in May 2000. Within a year, both the company's new owners and the Bush administration cancelled the agreement. "The oldest gun company in America isn't worth anything now," says Brown.
Outgunned tells the previously unheard story of the origins of the failed Smith & Wesson settlement, which began with two lawyers in Gauthier's nationwide litigation group (called the Castano Litigation Group) who were regular attendees at President Bill Clinton's cozy poker nights. In between hands of five-card draw, Clinton received updates on the legal battle for gun control and finally decided that the White House should join the fray.
"I don't think anybody realizes that these Castano attorneys were actually directing President Clinton's gun plank through those poker parties in the White House," says Brown. "The Smith & Wesson settlement and other proposed settlements were initiated by John Coale, the Castano member in New York, and Hugh Rodham, the Castano lawyer in Miami." Hugh Rodham is Hillary Clinton's brother.
Outgunned tracks the New Orleans lawsuit, among others, through the courts, and provides the national context of the legal battle. These were the years of the Columbine shootings and the Million Mom March, yet gun control legislation died in the U.S. House of Representatives. Following that defeat, the book states, "the gun lawsuits appeared to be the only hope for meaningful gun control."
"The lawsuit was motivated by the view that guns can be made safer with changes in design," says Morial. "Public policy changes have always occurred through the courts -- and the courts are the third branch of government." Brown agrees: "When you're in a hammerlock where no change can ever happen, no gun bill is ever going to be passed, then the courts become the last resort."
But this philosophy has plenty of detractors, among them Rep. Steve Scalise (R-Metairie), who authored the bill in the Louisiana House of Representatives that retroactively outlawed the lawsuit.
"The lawyers were trying to bankrupt the gun makers because they couldn't get anything passed in the legislature," Scalise says. "I learned in civics class that the legislature makes the laws, not the lawyers. I don't think they should be able to use the courts to bankrupt an industry. That's an abuse of the courts."
Yet change-through-litigation has a noble history, Gauthier and Abel argue. In Outgunned, Gauthier is quoted: "If lawyers hadn't launched Brown vs. Board of Education, you would never have had school integration because it was so unpopular with lawmakers." Abel also cites Ralph Nader's consumer safety lawsuits as a forerunner to the handgun suit.
At one point, the New Orleans lawsuit came back to haunt Morial, when in 1999, it was revealed that the New Orleans Police Department had traded in 8,000 old police guns and "crime guns," those confiscated from criminals, for 1,700 new Glock handguns to arm the police force. Although the agreement with Glock specified that the old guns could not be resold in Louisiana, Glock quickly sold the weapons to a wholesale distributor who had no such scruples, and NOPD guns turned up in New Orleans pawnshops two months later.
Paul Jannuzzo, Glock Inc.'s vice president, confronted Morial with the details of the trade on the Today show. Outgunned quotes Jannuzzo's memorable charge: "The city of New Orleans is the biggest distributor of used guns in the state of Louisiana." Because the municipal lawsuit faulted the gun industry for distribution practices that pushed weapons onto the city streets, Jannuzzo saw the mayor's position as "the epitome of hypocrisy."
Both Abel and Brown defend Morial. "The way it was reported, it appeared as though [Morial] was the villain," says Abel. "But it went through the City Council to get approved."
The controversy spurred the City Council to change its policy: NOPD announced in 2001 that a batch of 800 seized "crime guns" would be melted down and converted into a ship's anchor.
The Louisiana Supreme Court eventually dismissed the gun suit due to the bills passed by the state legislature. Abel says he doesn't regret having spent two years on the suit without earning a penny.
"We never thought we would make any money on this," he says. Because the entire gun industry makes $1.9 billion a year (as compared to the tobacco industry's profits of $1 billion per day), Abel and Gauthier knew that even a settlement might not recoup their expenses. "But this was something that Wendell wanted to do," says Abel.
"These things develop incrementally," continues Abel. "Social perceptions slowly change, and eventually legislation changes, too. We didn't win this lawsuit, but we established a foundation for lawsuits that will come in the future. And we won on perception: not all people, but many people would now agree that we should make guns safer."
Abel points to a bill recently passed by the New Jersey state legislature as proof of the lawsuits' impact. The bill, passed in December 2002, requires that new handguns be equipped with "smart gun" technology that prevents anyone other than the registered owner from firing the gun. The only hitch: the bill won't take effect until the technology is commercially available. In Outgunned, industry experts estimate that may take five to 10 years.
Brown has drawn grimmer conclusions than Abel. "This story was pretty dismal because you come to the conclusion that nothing can ever happen. I started on this book believing that they could achieve gun control, that the lawsuits would spur Congress and the state legislatures to promote better gun bills. And now I believe the opposite. Gun control can never happen as long as the NRA is still incorporated."
Brown pins his last hope on those lawsuits that are still progressing through the courts. Only three of the 34 municipal lawsuits have been dismissed, and nine of the remaining suits are now proceeding to trial. In one of these court rooms, Brown says, he hopes that any secrets the gun companies are harboring will come out.
"If in any of these suits that are going ahead it can be proven that [gun company executives] sit down with their engineers and their draftsmen and actually draw up guns directed for sale to the criminal element, and made more lethal for the criminal element, if that comes out in court then the Congress will be forced to do something," Brown says. "Then it won't matter if the lawsuit succeeds or fails."
- Donn Young
- the late Wendell Gauthier