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Attack of the Lawyers     By Karen MacNutt

In an August 16, 1991, Legal Times article, titled "Gun Control Through Tort Law," Dennis Henigan, director of the legal action project of the Brady Center, outlined their plan to achieve the Center's anti-gun goals using the courts.

"Holding a person or company liable for the intentionally violent act of someone else," he admitted, "is surely the exception, not the rule in American law." The article, and in a later one published in Trial magazine (February of 1995) tided "Victims and Violence," outlined the Center's plan to turn the common law rule on its end by supporting selective civil lawsuits. The goal was to have people who had done nothing wrong by current legal standards, pay for the intentionally violent acts of others.

In theory, if the only way you could protect yourself from being sued for the actions of people over whom you have no control is to not own guns, you would "voluntarily" stop owning guns. The Center could thus accomplish their gun control agenda. Even if they lost their suits, they could achieve their ends by the threatened, or real cost of defending a lawsuit. Such aggressive use of the courts is little better than blackmail. It is an abuse of the legal system. The anti-gun leadership supported the much-publicized suits against manufacturers. They also support less publicized suits against small business and homeowners. The middle class is vulnerable to economic coercion. It is often the victim of the very criminals the Brady Center ignores.

Generally the purpose of a civil (as opposed to criminal) lawsuit is to force a person who has caused a loss to pay money to the person who was damaged. In lawyer's terms, the "Plaintiff" is the person who claims to have been injured and the "Defendant" is the person who is being asked to pay damages. An action (lawsuit) starts when the Plaintiff files a complaint in court against the Defendant. The complaint states why the Plaintiff feels he or she is entitled to win. Complaints may state multiple reasons why the Plaintiff feels he or she should be paid damages (cash recovery.) In some states, the Plaintiff's complaint will state a dollar amount that the lawyer hopes to recover. When you see a headline: "Mrs. Jones sues shop for $10 million," the dollar figure is set by the Plaintiff's lawyer and may be very unrealistic.

The Defendant has a fixed number of days to answer the complaint by denying or admitting each statement made in Plaintiff's complaint. Failure to answer the complaint will result in the Defendant being defaulted and Plaintiff winning. No matter how stupid the Plaintiff's accusations might be, a court will assume they are true if they have nor been denied.

The Defendant can make counter-accusations in his or her answer. For example, Mrs. Jones sues a donut shop saying in her complaint that she slipped on the floor and hurt herself. The shop owner states in his answer: 1. Mrs. Jones had driven her car through the shop window causing damage to the Defendant's property (counter claim for damage to the shop); and 2. The fluid she slipped on was anti-freeze which escaped from Mrs. Jones own car due to her own reckless driving (defense of contributory negligence). The complaint and answer are collectively called "pleadings."

Once the pleadings are filed, either party can ask the court for "summary judgment." That is legal talk for one side saying the other side has no chance of winning under any set of facts that are possible of being proven. Motions for summary judgment are filed because trials are expensive. If a case can be quickly disposed of, it saves money.

In a motion for summary judgment, the court looks at the evidence in a light most favorable to the party opposing the motion. A motion for summary judgment is a legal argument. Just because someone loses a summary judgment motion, it does not mean that he or she will lose the case. A jury, after a full trial, could find that the evidence supports the party who lost the summary judgment motion. Summary judgment motions often end up in an appeals court.

If your goal is to make law rather than to collect money, you want your opponent to bring a motion for summary judgment because: 1. you get a court to rule on your issues of law without having to prove any facts, and 2. the court assumes you are able to prove your best case. If you first go to court and lose before a jury, the case might be decided on issues of fact without ever reaching the issues of law.

Going back to our donut shop for a moment, let's assume Mr. Sharp, who was standing at the counter, was hurt by Mrs. Jones' car. He hires a lawyer for the usual fee, one third of all the money recovered. The problem is Mrs. Jones stole the car she was driving. She was also driving unlicensed, uninsured and has no money. Even though she was at fault, she is judgment proof (has no money from which a judgment can be paid). The lawyer thinks, ''I'll sue the manufacturer of the car. They have money." The manufacturer says, "There was nothing defective about the car. We are not responsible (have no control over) the acts of Mrs. Jones." The lawyer thinks, "I'll sue the donut shop. You had a duty to keep your Customers safe." Donut shop says, "We have to keep our customer's safe, but only from foreseeable harm. We are not responsible for Mrs. Jones's unsafe and illegal driving habits." Then the lawyer says, "I'll l sue the person Mrs. Jones stole the car from." "Wait a minute," the car owner says, "I'm a victim here also. I'm not responsible that Mrs. Jones is a thief." Each response is a valid legal defense. If the lawyer wants to make money, he would not take the case. If the lawyer wants to prevent automobiles from being sold or kept in the community, he might take the case.

With that in mind, the antigun leadership is attempting to hold homeowners liable if someone in the household owns a gun and that gun is used to hurt someone. That is so even if the gun is stolen.

One theory pushed by the Brady Center is that guns are ultra hazardous and therefore a homeowner should be responsible for whatever harm the gun causes without regard to any carelessness on the part of the homeowner. This is called "strict liability." Guns, they argue, have no place in people's homes, therefore the owner should be responsible for any harm caused by a gun kept in the house without regard to any other factor. The Center targets the homeowner, not the gun user and not the perpetrator of the violence. The Center apparently wants homeowners to refuse to allow guns in their homes because of the threat of being sued. This would result in de facto discrimination. It would fall disproportionately on tenants who are more likely to be minorities or from moderate or low income households. So far, no court has adopted this theory although the Brady Center has pushed for its adoption.

Under traditional legal theory, if you provide someone with something capable of causing harm, and you know that person is irresponsible, and harm occurs, you might be held liable for the actions of the person who caused the harm. In Out example, if instead of the car being stolen, Mrs. Smith had loaned her car to Mrs. Jones knowing that Mrs. Jones had a revoked license, Mrs. Smith, under traditional legal theory, could be held liable for any damage Mrs. Jones caused. Mrs. Smith gave Mrs. Jones a car knowing that she as not a fit person to drive. It was foreseeable that Mrs. Jones would get into an accident. Therefore Mrs. Smith should be liable.

A generalized knowledge that someone could be butt if the person who obtains the object is careless is not enough. Usually specific knowledge is required that a particular individual has a history of irresponsible behavior.

One area of the law where this theory is being expanded by the courts involves serving alcohol to a guest in your home. Businesses that sell liquor are covered by state "dram shop" acts which specifically impose liability on licensed dealers who server liquor to people who are already drunk. The obligation of the social host, however, is not covered by statute and is not clear. The courts are reluctant to impose liability generally but they are inclined to consider imposing liability when there are special circumstances. If a person is drinking at your house, then gets into his or her car and is in an accident, should you be held liable because you served them alcohol? The answer to that question varies from state to state and may be changing from a definite "No," to "Maybe." If a gun owner gives someone a gun whom they know is unfit, and that person causes injury, will the gun owner be liable? They may be. What if the gun owner simply invites the unfit person into their home as a guest and the guest steals the gun? Should the gun owner be liable for the wrongful acts of the thief' The Brady Center thinks so.

They are trying to establish that the mere presence of a gun in a home imposes a higher duty than other household items. They say that homeowners should be liable when someone takes a gun out of the home, even if it is without the permission of the owner, even if the person misusing the gun has forced the lock on some storage area.

In Heck v. Swffer (Indiana), the state Supreme Court imposed a duty on gun owners to "exercise reasonable care in the safe storage of a firearm." Gun owners could be liable if their gun was taken, even without permission, by someone who later misused it. This is the type of legal precedent the anti-gun forces want.

The facts of Heck, however, are consistent with traditional liability rules. What is "reasonable" is a jury decision that will depend upon the facts of each case. Heck involved a homeowner who stored a handgun in his home without locking it in any manner. In addition, the homeowner had an adult son with a history of a felony involvement and illegal drug use. While criminal charges were pending against the son, he was given free access to the house and by that, to the gun. The son took the gun and used it to kill a police officer. The lower court granted summary judgment to the defendant homeowners but the state Supreme Court reversed and allowed the question of reasonable storage to go to a jury.

In Jupin v. Kask, a Massachusetts court made a similar ruling. The court rejected the Brady Center's position that there should be strict liability. In Jupin, the long time live-in companion of the homeowner, Kask, stored guns in the shared home. The guns were in a locked storage cabinet made by the companion. Kask knew the guns were there but assumed, without knowledge, that they were properly stored. The companion had a mentally unstable adult son who had grown up in the home and had lived there off and on for years. The son forced the storage cabinet, stole a gun and killed a police officer. The lower court allowed a motion for summary judgment in Kask's favor (that is it held that Plaintiff did not have a case.) The state Supreme Court reversed. It held that the homeowner might be liable if the guns were not properly stored. Massachusetts has a safe storage law with specific requirements for storage. The effect of the high court ruling was to send the case back to a jury to determine if the storage method was reasonable given the circumstances.

Although the court treated the live-in companion as if he were a stranger living in the house, he was not. He was a husband surrogate. The traditional family of a married couple with children is falling victim to our divorce rate. A family consisting of a parent, a spouse substitute, and children by one or more marriages that are not the biological children of both partners is very common.

Volpe v. Gallagher (Rhode Island) is also considered a win by (he Brady Center. Gallagher was a 34- year-old man who resided with his mother. He suffered from hallucinations and probably from schizophrenia. He had never been found to be a danger to himself or others nor had he been ruled incompetent. He had no history of violence. One day he took a gun he owned and killed a neighbor for no apparent reason. The family of the neighbor sued Gallagher's mother, who owned the home where she and her son resided. The Plaintiff (Volpe) claimed the Defendant (Gallagher's mother) had created an unreasonable risk of danger to the neighbor by allowing her mentally ill son to possess guns and ammunition. The Defendant said that she did not know her son possessed guns. The son had no history of violence and she had no reason to believe he would harm anyone. The jury found that the mother knew or should have known the son had guns. The question then became, should the mother be liable where there was no evidence her son had a history of violence? The state Supreme Court said that the homeowner had a duty to control the conduct of the adult son so as to prevent him from harming others. It further held that a jury could find, as it did in fact find, that her allowing her son to possess guns on her property, given his history of paranoia, hallucinations and delusions, created an unreasonable risk of harm to others. The court assumed that a mentally unstable person in possession of a firearm creates an inherently dangerous situation. The court was careful to say that the case was not based upon the duty of a parent to control an adult child, but on a property owner's obligation to control the conduct of a licensee, that is a guest.

The court was divided. The judges who disagreed with the majority feared that the ruling would open the door to holding parents liable for the conduct of adult children. Parents with an adult child who might be troubled but who could not be committed because the child could not be shown to be a danger to himself or others, are faced with a dilemma. They must turn their troubled child into the street or risk losing their own home if the child hurts someone unexpectedly.

The Brady Center and other anti-gun proponents have their tunnel vision. They are so focused on harassing gun owners, that they fail to consider the collateral consequences of their actions. They failed to consider the devastation to the American worker that expanding liability against manufacturers causes. They failed to appreciate the cost to American cities that results from driving out of business the very vendors the city must rely upon to equip their public safety forces. They fail to appreciate the social cost if parents are forced to abandon adult children in need.

The cost to society in increased poverty, homelessness, as well as the strain on the public infrastructure due to the collateral effects of the actions of people such as the Brady Center far outweigh any benefit they can show arising from their actions. It would appear that the legacy of the Brady Center in this matter will not be their utopia of gun control, but the creation of more homelessness and isolation of those in need of help.


This article was reprinted from Women&Guns March-April 20072007 , Copyright © Karen MacNutt