 National Association of Counties * Washington, D.C. Vol. 31, No. 5 * March 15, 1999 Previous story | Table of Contents | Next story Congress, states have local governments in their sights Proposals prevent counties from By Mary Ann Barton
State lawmakers in Georgia recently enacted a law which prohibits such lawsuits, in response to legal action taken by Atlanta Mayor Bill Campbell, who has vowed to fight the state action. Cook County, Ill., Miami-Dade County, Fla. and Orleans Parish, La. have filed lawsuits against gun manufacturers, seeking to recover millions of dollars lost from gun-related violence in their communities. "We are hopeful that this lawsuit will become a national test case because clearly the gun industry knowingly designs, markets and distributes firearms in order to facilitate their illegal entry into the hands of criminals," Cook County Board Chair John Stroger told members of the NACo Justice and Public Safety Steering Committee Feb. 27. Other counties are considering such lawsuits. Encouraged by the National Rifle Association, lawmakers in other states are also considering legislation to prevent local governments from taking legal action. The states are: Alabama, Florida, Kansas, Louisiana, Michigan, Minnesota, Oklahoma, South Carolina, South Dakota, Texas, Vermont and Wyoming. Kristen Rand, director of federal policy for the Violence Policy Center in Washington, D.C., says the legislation has "no chance whatsoever of happening" in states such as Illinois where Cook County’s lawsuit is pending, California, where cities and counties are considering filing lawsuits or New York, where the state attorney general has announced an intention to file a lawsuit.
"What is troubling to us – as quite frankly I think it should be troubling to all cities and counties in this country – is that the legislature would even consider a bill prohibiting us, as a local political subdivision, to access the courts to seek and address an issue that legislatures have been unwilling to deal with in the past," said Miami-Dade County Mayor Alex Penelas. A companion bill, SB 1586, has been introduced in the Florida Senate by state Sen. Charlie Bronson. If the bill passes, Penelas said "we will urge the governor not to sign the law. If the governor does sign it, we will challenge it in court." "I think what we need to be concerned about as local governments, is what’s next?" Penelas said. "If they’re going to keep us from bringing lawsuits against the gun industry because they favor the gun industry, what are they going to do next? What other industry or what other subject area is going to be precluded from local action? That’s a real concern." A recent op-ed column in The Washington Post, written by social commentator E.J. Dionne, notes the bill introduced in Florida "is a truly astonishing attack on local autonomy." The fact that the proposed legislation in Florida would make a criminal out of a county official "is outrageous," said Carl T. Bogus, a professor at the Roger Williams School of Law in Rhode Island, who writes frequently on gun control issues. "It’s an attempt to terrorize county officials into not testing the law in court," Bogus said. "If you challenge this, litigate it in the courts, and you lose, you may end up in jail. It’s an attempt to circumvent judicial review. It ought to be repudiated at the ballot box." Penelas says the issue is a local one. "Guns and issues like abortion may be controversial in statehouses or in Congress, where a lot of policy is determined through partisan politics, but when you get to the local level where we are, we’re the people, I’m the one, who almost every week has to call the grieving parents of a child tragically killed by gunfire," Penelas said. "I’m the one who has to show up at our trauma center and give condolences to the widow of a police officer slain in the line of duty. We’re the ones that deal in the trenches with these issues, so we’re the ones that should be given the flexibility to deal with them however we think is appropriate." Are county officials split on this hot-button issue? "Yes, I probably do see some county officials in rural areas being split," Penelas said. "That’s exactly why we’ve done a lot of these things using local option [Miami-Dade County voters overwhelmingly approved a proposition closing the ‘gun show loophole’ last year]. Not every county has to bring a lawsuit if they don’t want to." "I come from a county where the majority of my commissioners are Republicans, but they voted 10–1 in favor of pursuing the lawsuit," Penelas.
The proposed law will not interfere with lawsuits against manufacturers of defective firearms or lawsuits against those who sell firearms knowing they would be used to commit a crime, he noted. Barr said the gun lawsuits, like the successful tobacco lawsuits, are a "new legal theory" that "cry out for a national remedy" and if they are "allowed to stand, then we will witness a devastating assault on businesses in America." Barr said Congress has acted to "preempt state liability" in the past. He cited a list of examples, including: the General Aviation Revitalization Act of 1994; the Federally Supported Health Centers Assistance Act of 1995; the Bill Emerson Good Samaritan Food Donation Act of 1996; the Aviation Disaster Family Assistance Act of 1996; the Volunteer Protection Act of 1997; the Amtrak Reform and Accountability Act of 1997; the Biomaterials Access Assurance Act of 1998 and the Year 2000 Information and Readiness Disclosure Act of 1998. "It’s hard to imagine that bill will get through Congress," said Robert Spitzer, a political science professor at the State University of New York, Cortland, N.Y. "The NRA has its best shot – sorry, chance – at the state level," said Spitzer, author of "The Politics of Gun Control." Meanwhile, Sen. Barbara Boxer (D-Calif.) announced plans to introduce legislation to guarantee local governments the right to sue gun manufacturers and distributors. "The costs of gun violence, including law enforcement and health care costs, have become an increasing burden on many local communities," Boxer said. "The federal government sends billions of dollars to local communities to fight crime. If local governments believe the fight against crime is being hampered because of a mass proliferation of guns, I believe it is in the national interest to allow them to take action in court." The proposals by Barr and Boxer follow on the heels of legislation introduced recently by Sens. Richard Durbin (D-Ill.), Frank Lautenberg (D-N.J.), and Charles Schumer (D-N.Y.). The bill seeks to empower local governments to sue the gun industry for federal damages. The "Gun Industry Accountability Act" defines federal damages as those associated with medical costs, lost wages, and long-term care resulting from the "sale, distribution, or misuse of a firearm." Under the bill’s formula, if a local government succeeds in recovering these federal damages, it would keep a majority of the money, with a portion going to the federal government to pay for so-called crime and injury prevention programs. |
Once again, federal and state lawmakers are seeking to pre-empt local authority. This time, they're drawing a bead on legislation to prevent counties from filing lawsuits against gun makers.