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Suing the Gun Industry: Can Gun Manufacturers Be Held Responsible for Crime?

Last year New Orleans became the first city to file suit against the gun industry. Chicago followed. And now many other cities (including Philadelphia, Boston, Miami, San Francisco and L.A.) are considering similar actions. Journalist Fox Butterfield writes about crime and criminal justice for The New York Times. He'll discuss these suits as well as one filed in New York by a group of individuals who lost family members from gun violence. Butterfield was a member of the Times writing staff that won a Pulitzer Prize for its publication of The Pentagon Papers. He's also author of the book, "All God's Children: The Bosket Family and the American Tradition of Violence" (Avon Books)

16:40

Other segments from the episode on January 20, 1999

Fresh Air with Terry Gross, January 20, 1999: Interview with Fox Butterfield; Interview with Richard Feldman; Interview with Tom Diaz.

Transcript

Show: FRESH AIR
Date: JANUARY 20, 1999
Time: 12:00
Tran: 012001np.217
Type: FEATURE
Head: Fox Butterfield
Sect: News; Domestic
Time: 12:06

TERRY GROSS, HOST: This is FRESH AIR. I'm Terry Gross.

Cities are beginning to experiment with a new approach to curbing violence -- suing the gun industry. Chicago and New Orleans filed suits last fall. Mayors from around the country will discuss filing similar suits when they meet later this month at the annual Conference of Mayors.

The gun lawsuits are inspired by successful suits against tobacco companies and incorporate some of the same legal arguments. Right now the tobacco industry is bracing for a new Justice Department suit that the president announced last night.

We'll hear a couple of perspectives on the gun suits. First, we have an overview from Fox Butterfield, national correspondent for "The New York Times," who covers crime and criminal justice. Let's start with a lawsuit underway in Brooklyn. Family members of six people who were killed in separate shooting incidents are holding the gun industry collectively liable for the deaths.

FOX BUTTERFIELD, JOURNALIST, "THE NEW YORK TIMES"; AUTHOR, "ALL GOD'S CHILDREN": This is the first of a new generation of lawsuits that are going to be filed against the gun industry this year. This one involves individuals, the others are going to involve cities.

In this one the theory is to hold the gun industry collectively responsible as opposed to past suits which have really just looked at individual gun companies. But the theory here is to hold them collectively responsible for negligently distributing guns in such a way that people were able to go to states with lax gun control laws, particularly those in the Southeast -- Georgia, South Carolina, Virginia, Florida -- and purchase guns and bring them to New York which has strict gun control laws. And then use those guns to commit crimes in New York.

GROSS: How are the people who are suing saying that the gun industry is to blame for the fact that people bought guns in the South where the laws are more lenient and took them to the North where the laws are stricter?

BUTTERFIELD: They've done a lot of statistical analysis based on data that's been collected in the past few years by the Bureau of Alcohol Tobacco and Firearms which shows that a large number of guns are sold in these states with lax gun control laws -- much larger number of guns than people there would buy. More sort of per population, if you will. And so it's based on this statistical analysis.

GROSS: Now, the city of Chicago and the city of New Orleans have already filed suits against the gun industry. Let's look at the city of Chicago lawsuit. It filed a $433 million suit naming 22 manufacturers, 22 stores and four distributors of guns. What is the suit charging in Chicago?

BUTTERFIELD: The suit in Chicago in many ways is very similar to the private suit being brought in New York. It's also charging that the gun manufacturers and distributors and dealers basically flooded the market -- knowingly flooded the market.

Chicago has extremely strict gun-control laws. It's essentially illegal to own a handgun in the city of Chicago, and you can't purchase a handgun in the city of Chicago. But you can in the suburbs. And so there are a ring of dealers in the suburbs that sell guns rather easily to people who come out from Chicago -- from the city.

And what Chicago did before it filed its suit was it ran a sting operation. It had police officers go out and dress up as members of street gangs or militias or biker groups and go into these suburban gun dealers and say, hey, you know, I need a piece because some cop is giving me a hard time or I need a gun because somebody is trying to rip off my drug territory. Or they would say, you know, I don't have a state firearms permit. Is it okay if I buy a gun?

And they found that the gun dealers were perfectly happy to sell them guns in these situations and in some cases even tell them what brand of gun would be better to buy to shoot a cop. So, Chicago is using that information and saying that the dealers were knowingly selling to people they shouldn't have. And that the manufacturers were selling far too many guns to the stores compared to the number of people who would have lived in the suburbs.

GROSS: Meaning that the manufacturers kind of knew that something fishy was going on here.

BUTTERFIELD: That the manufacturers were in essence turning a blind eye or winking at what was going on.

GROSS: Now, New Orleans has also filed a suit against parts of the gun industry. How does the New Orleans suit compare to the Chicago suit?

BUTTERFIELD: The New Orleans suit is based upon a very different legal theory or claim. It's based on a more traditional product liability claim. Although what they're saying is that the gun manufacturers failed to incorporate sufficient safety devices, particularly some new ones that would allow people to personalize guns.

So that there would be high-tech safety devices that would make it impossible for someone other than the actual owner to fire the gun.

GROSS: So New Orleans is saying that the gun industry could have added these safety precautions, but they intentionally haven't. What would the rationale be for not adding it according to the lawsuit?

BUTTERFIELD: Well, the rationale from the gun industry -- I mean, the gun industry argues several things. One is that these devices are not yet perfected. And secondly, that if you did add them that they might make it difficult for the owner, when he needed the gun, to fire it.

Presumably people have these guns for self defense. And if there was a failure in the safety device than the owner might not be able to use it when his house was broken into, say.

GROSS: Is the New Orleans lawsuit accusing the gun industry of intentionally not adding these safety guards because it enables the gun industry to sell to more people?

BUTTERFIELD: Yes. And they're arguing that the gun industry for years has resisted efforts to incorporate more safety devices. That essentially there has been very little change in the design of guns in a century. And considering what we've invented in the past century that we certainly could have made guns safer.

GROSS: There's a whistle blower from the gun industry whose come forward -- Robert Hass (ph) -- who was a former senior vice president of Smith and Wesson. He left the firm in 1989. What has his role been in these lawsuits against the gun industry?

BUTTERFIELD: Well, his role specifically in the suit that's now in Brooklyn called Hamilton v. Accutech (ph), and he has provided information somewhat similar to that of some of the whistle blowers in the tobacco suits showing that the gun companies were aware of what they were doing in the way they were selling their guns. That they did not make a great deal of effort to find out how the guns were being distributed and who was buying them. That they were careless.

GROSS: There's a lot of other cities that are considering suing part of the gun industry and there's a National Conference of Mayors for the end of this month. What are some of the things that might be discussed there?

BUTTERFIELD: The big issue at the annual meeting of the U.S. Conference of Mayors, which is going to be held in Washington at the end of January, is going to be how to sue the gun industry. There will probably be 15 or so cities that will be suing the gun industry by spring or summer. There might be as many as 50 to 100 cities by the end of the year. That's the talk. What will actually happen remains to be seen.

GROSS: If you're just joining us, my guest is Fox Butterfield, national correspondent for "The New York Times," writing about crime and criminal justice. He's also the author of the book "All God's Children."

How would you say that these guns suits compare to the suits against the tobacco industry?

BUTTERFIELD: Certainly, the success of the tobacco litigation has spurred the cities to try this. Really, in the past virtually all suits against the gun industry have failed, because the gun industry has argued that while the product they are making is dangerous and does wound or kill people that, in fact, is what it is designed for. So, there's really no mistake in the way it's manufactured. And they've been able to convince juries that that's so up until now.

But the cities have the seen through the tobacco litigation that you can take a different position here. That you can argue that it's not sort of the negligent use of the product by one person as the problem that held back the smoking suits for a long time. The tobacco industry was able to blame people's diseases -- people's cancers -- on their own smoking.

Instead what's happening now is that the cities are saying, hey, the gun industry is causing this huge amount of excess cost to society; that's causing cost for police, that's causing costs to our hospitals and that society ought to be able to recover these costs from the gun industry as a whole.

GROSS: The tobacco industry has fought a long and expensive campaign against the lawsuits. What about the gun industry? Is it as well equipped as the tobacco industry to fight the lawsuits?

BUTTERFIELD: This is one of the fascinating points, in where the cities think that the tobacco -- that the gun industry is much more vulnerable than the tobacco industry because it's much smaller. The combined sales last year of the gun industry were about $1.4 billion. Tobacco, last year, sold about $48 billion worth of cigarettes.

So, we're talking about, in tobacco's case, a huge industry, and in the gun industries case a small industry. And furthermore, the gun industry's sales have been stagnant or even down over the past decade. So it's not a business that's making a great deal of money.

GROSS: Is the fact that gun sales are either slumping or stagnant a sign that gun violence is perhaps on the decrease?

BUTTERFIELD: I'm not sure that that's connected. You might argue that. But gun sales have been slumping for some time because -- in part because guns have become somewhat un-PC -- they're unfashionable. And the gun industry has really been reaching to try to find ways to increase its sales.

If you go back a few years -- go back to the 1950s and '60s -- rifles and shotguns were the major form of guns that were manufactured -- so-called long guns. But since then it's been handguns that have been the big item. And sales of rifles and shotguns have really been down.

In recent years the gun industry has survived by increasing the sales of its handguns. And in the '80s, particularly by increasing the lethality of its guns, developing these new kinds of products -- one of the oddities about the gun industry is that of course guns don't really become obsolescent and they don't wear out.

Unlike most other products, guns can go on for years -- tens of years even a hundred years and still be useful. So the gun industry has had to come up with very new kinds of products in order to increase its sales. In the '80s, they developed these semi automatic handguns with large magazines with new calibers -- bigger calibers -- that could cause more damage. And they were kind of sexy to buy and sexy to use.

GROSS: If you're just joining us, my guest is Fox Butterfield national correspondent for "The New York Times." He writes about crime and criminal justice. We'll take a short break and then we'll talk some more.

This is FRESH AIR.

BREAK

GROSS: Fox Butterfield is my guest, national correspondent for "The New York Times." He writes about crime and criminal justice. He's also the author of the book "All God's Children." And we're talking about the current lawsuits against the gun industry and the possibility of future lawsuits against the industry as well.

Is there new information about how guns are bought, who uses guns and the nature of crime that is feeding these lawsuits?

BUTTERFIELD: Yes. There's been a lot of new information developed just in the past few years. I mean, the Federal Bureau of Alcohol Tobacco and Firearms -- it's called the ATF -- had really not been able to -- which is the federal agency that oversees guns. It had been very underpowered until quite recently.

Ronald Reagan actually ran on a platform to abolish the ATF. It's always been unpopular with the NRA, with gun enthusiasts, and in fact until very recently they didn't even have any computers and they've not been allowed to computerize their information. But President Clinton put some people in who are much more interested in trying to find out where these guns were coming from -- where the guns used in crime were coming from.

And the ATF has begun a serious program of tracing guns used in crimes. And one of the things that's come out of that research has been the discovery that a very high percentage of guns used in crimes are new guns. The gun industry has always said that guns used in crimes were largely stolen.

What the research is showing is that up to a half of the guns used in crimes have, in fact, been manufactured within the past three years. They have a relatively short time to crime. In other words, they're going from the manufacturer to the distributor to the dealer to purchasers and getting used in crime very quickly.

GROSS: And that indicates what about the gun industry?

BUTTERFIELD: That industry -- that indicates that the gun industry probably knows that this is happening and could probably find more responsible, more controlled ways to distribute their products. At least that's what the cities are claiming.

GROSS: Guns are one of, or perhaps the only product not regulated by the Consumer Product Safety Board. Can you clarify that?

BUTTERFIELD: Yes. In fact, guns are essentially the only product that's not subject to regulation by the Consumer Product Safety Commission. That's by an act of Congress going back to the early 1970s when the Consumer Product Safety Commission was created. Representative Dingell (ph), who was a member of the NRA, put that in there.

GROSS: Now, is this part of the debate now about whether there should be an agency that actually regulates the production of guns, regulates the quality of the guns themselves, what kind of safety devices are on them?

BUTTERFIELD: Certainly, some of the cities would like to see that. Terry, one of the very interesting findings of recent years, which goes along with this which leads the cities to bring these suits, is that all of the increase in homicide in the 1980s -- that big jump in murder -- was caused by juveniles and all of that was in turn caused by juveniles using handguns.

So that the entire increase really is attributable to handgun violence. And so the cities that want to get -- get a handle on their violent crime problem have to go after guns. And the cities that have been successful in doing this, Boston is the best example, have really made extremely serious efforts to try to stop the illegal market in guns. And Boston went almost two years without a juvenile being killed by a gun as a result.

GROSS: Fox Butterfield is national correspondent for "The New York Times," covering crime and criminal justice. He's the author of the book "All God's Children."

This is a rush transcript. This copy may not
be in its final form and may be updated.

TO PURCHASE AN AUDIOTAPE OF THIS PIECE, PLEASE CALL 888-NPR-NEWS

Dateline: Terry Gross, Washington, DC
Guest: Fox Butterfield
High: Last year New Orleans became the first city to file suit against the gun industry. Chicago followed. And now many other cities (including Philadelphia, Boston, Miami, San Francisco, and L.A. are considering similar actions. Journalist Fox Butterfield writes about crime and criminal justice for "The New York Times." He'll discuss these suits well as one filed in New York City by a group of individuals who lost family members from gun violence. Butterfield was a member of the "Times" writing staff that won a Pulitzer Prize for its publication of The Pentagon Papers. He's also the author of the book, "All God's Children: The Bosket Family and the American Tradition of Violence."
Spec: Crime; Violence; Weapons; Guns; Government; Lawsuits; Lifestyle; Culture; Legislation; Fox Butterfield

Please note, this is not the final feed of record
Copy: Content and programming copyright 1999 WHYY, Inc. All rights reserved. Transcribed by FDCH, Inc. under license from WHYY, Inc. Formatting copyright 1999 FDCH, Inc. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to WHYY, Inc. This transcript may not be reproduced in whole or in part without prior written permission.
End-Story: Fox Butterfield

Show: FRESH AIR
Date: JANUARY 20, 1999
Time: 12:00
Tran: 012002NP.217
Type: FEATURE
Head: Richard Feldman
Sect: News; Domestic
Time: 12:20

TERRY GROSS, HOST: The gun industry is at work fighting the lawsuits against it, and preparing for more. Richard Feldman is the executive director of the gun industry lobby group the American Shooting Sports Council. Its members are from all levels of the gun industry. I spoke with Feldman about how the gun industry is responding to the attacks against it.

The Chicago lawsuit is suing the gun industry for $433 million. And this is going to include police costs, fire department, public hospitals, expenses caused through gun injuries and gun deaths. What do you think of being held financially liable for those costs related to gun injuries and deaths?

RICHARD FELDMAN, EXECUTIVE DIRECTOR, AMERICAN SHOOTING SPORTS COUNCIL: If Chicago would like to credit our industry a million dollars for every time a Chicago police officer has used his gun to prevent a crime from occurring that might be weighing out the equities and the detriments one way.

But to look at the issue -- how come every time a Chicago police officer draws his sidearm, prevents criminals from misusing a knife or a gun, apprehends them -- we're not being credited for that. We're only responsible for the criminal misuse?

When you say that an industry who manufactures a product lawfully, correctly, properly and a non-defective product at that, and when those products are misused by criminals who shouldn't be in position -- possession -- of that product, one has to ask what the Chicago police department has been doing all these many years to combat the problem.

All of a sudden Mayor Daley has decided there's a problem in Chicago and instead of saying to his police department, let's figure out a better way. Let's get our police resources together and go after the people misusing guns. No, instead, Mayor Daley is saying, let's blame the people who manufacture the product, who have sold and transferred many times, but eventually -- in a few instances -- get in the hands of the wrong people who misuse those products.

The industry who makes them is responsible? Oh, please, Mayor Daley. The citizens of Chicago aren't that silly and aren't that foolish. And juries across this country don't believe that kind of nonsense. You may be able to say that in a news conference, but the American people know better than that.

GROSS: I want to step back and look at the big picture here. There are already a couple of cities that are suing the gun industry and more cities might do that as well in the near future. What is the gun industry's plan for fighting these lawsuits?

FELDMAN: Well, I think there are several possibilities depending on how many cities in fact decide to spend their precious resources on lawyers going into courts, spending four, five, six years which ultimately will end up as a jury verdict for the defendant -- our industry.

How many lives actually could have been saved by spending those same resources on increased police protection, on the ATF tracking the very people who are misusing guns spying and selling them illegally today? And the citizens are going to have to make decisions, as we do in a democracy, whether their mayors have been effective in the fights that the citizens care about.

Anyone who thinks that by suing the manufacturers of the very products that law-enforcement carries to protect the citizens is going to prevent one single criminal act with a firearm, they're kidding themselves. And they may be able to successfully kid themselves, but I doubt they can kid a majority of the citizens in their cities for very long. We'll fight the suits. We have no choice.

GROSS: How would you compare the city lawsuits against the gun industry with the lawsuits against the tobacco industry?

FELDMAN: Once again, they're really not very much alike at all. Tobacco -- when tobacco is used, as intended by tobacco manufacturers, is harmful to the user. When a handgun is used, as intended by a handgun manufacturer, it doesn't harm the user it can save the users life. Big distinction between those two products.

GROSS: Richard Feldman is the executive director of the gun industry lobby group, the American Shooting Sports Council. We'll hear more from him in the second half of the show.

I'm Terry Gross, and this is FRESH AIR.

BREAK

GROSS: This is FRESH AIR. I'm Terry Gross.

We're talking about a new direction the gun debate has taken. Two cities, Chicago and New Orleans, are suing the gun industry holding it liable for the legal and medical costs associated with shootings. More cities are considering similar suits. We're going to continue our conversation with Richard Feldman, executive director of the gun lobby group the American Shooting Sports Council.

What are the legal grounds that the gun industry is going to use to fight the suits?

FELDMAN: America's law in the whole area that we're being sued on is very well-established in all 50 states. Manufacturers cannot be held liable for the criminal misuse of their products. That is very old established law, and there seems to be no intent on the part of anyone other than the plaintiff's lawyers to change that long established principle. To do otherwise would take our whole civil justice system, turn it upside down and inside out.

GROSS: So you think that the gun industry should have absolutely no responsibility for what happens to the guns after they're manufactured?

FELDMAN: I didn't say that. I think we have an absolute responsibility to abide by the letter of the law. But once a product leaves the hands of a manufacturer, the manufacturer essentially has no control over the product three and four and seven and ten steps removed. And that's true for all products.

You know, the only reason that scalpels are manufactured is to cut human flesh. That is, after all, the intent of the scalpel manufacturer in manufacturing that particular device. Now, generally, those scalpels end up in the hands of surgeons, and we all applaud when a surgeon uses that tool correctly, properly to save someone's life.

Yet that same tool, the scalpel, in the hands of a crazed maniac can cause all sorts of amounts of damage. To sue the scalpel manufacturer, because he or she knows that some small percentage of the scalpels they manufacture may end up in the hands of a criminal, is to say don't manufacture scalpels at all.

GROSS: The suits being filed against the gun industry, at the very least, are going to cost the gun industry a lot of money in legal fees. Are you prepared to deal with that? What impact do think just the legal fees alone are going to have on the gun industry?

FELDMAN: Well, I can tell you that in just this Hamilton case in Brooklyn we've spent already, and the trial isn't over, upwards of close to perhaps $4 million. Naturally, just like in any other product, ultimately the consumer will pay. Will the price of guns go up? You bet they will.

GROSS: Do you think that guns on the street have changed from the guns of 20 or 30 years ago? That they're more lethal now, and if so, what does that mean?

FELDMAN: I think the people on the streets of America are more lethal. The guns -- well, I mean, I guess reasonable people could argue as the cal -- it's very interesting, the same people who keep talking about the need to ban so-called "Saturday night specials." Well, by whatever definition, one thing we all agree on is the so-called "Saturday night specials" tend to be inexpensive, low caliber, meaning less lethal guns.

When those guns start to disappear and are restricted in one way or another, criminals don't say, gee, I was only going to commit my crimes with the "Saturday night specials" in 25 caliber. If the guns that are predominately around are 9 mm, 40 caliber, 45 -- criminals will use whatever gun they get their hands on.

In fact, that's ATFs informal definition of the gun of choice of America's criminals. The first gun they can get their hands on. Will the lethality of those guns go up? Yeah, it probably will. There are consequences to policy decisions that we make. Sometimes there are unintended consequences.

And our elected officials ought to be a heck of a lot more careful in their policy deliberations than they've been, because the consequences can be life and death.

GROSS: The National Conference of Mayors is meeting at the end of the month. One of the big subjects on the agenda will be should other cities file suits against the gun industry. A lot of cities are considering it, they're not sure if they're going to go through with it. What are you doing to try to convince mayors not to sue the gun industry?

FELDMAN: Well, but we've been meeting for the last year with Mayor Ed Rendell of Philadelphia and his task force. And we've come a fairly long way. The question is, do the mayors want to take a kind of in your face litigious approach to problem solving? Or do they want to work with us? The choice is still theirs.

I think we can solve a lot more in this country when we come together and stop this -- stop the continual slogans over solutions approach that some of the mayors have, and work on the problem and find solutions.

GROSS: Any example of a compromise you're willing to make as a member of the gun industry?

FELDMAN: For example, it was President Clinton who came to us a year ago September and asked us to move forward with the child safety locks. It wasn't but two weeks we were able to come back with an answer and we were there in the Rose Garden with the president leading the applause for what we did.

We're capable, able to do those kinds of things when appropriate. But we're going to do them when we're working together. If the mayors want to sue us in court, well, they're certainly free to do so, but they're going to be spending an awful lot of resources getting nowhere quickly.

GROSS: Richard Feldman is the executive director of the American Shooting Sports Council.

This is FRESH AIR.

This is a rush transcript. This copy may not
be in its final form and may be updated.

TO PURCHASE AN AUDIOTAPE OF THIS PIECE, PLEASE CALL 888-NPR-NEWS

Dateline: Terry Gross, Washington, DC
Guest: Richard Feldman
High: Executive director Richard Feldman of the American Shooting Sports Council, which represents gun manufacturers.
Spec: Crime; Violence; Lawsuits; Guns; Weapons; Legislation; Lifestyle; Culture; Richard Feldman

Please note, this is not the final feed of record
Copy: Content and programming copyright 1999 WHYY, Inc. All rights reserved. Transcribed by FDCH, Inc. under license from WHYY, Inc. Formatting copyright 1999 FDCH, Inc. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to WHYY, Inc. This transcript may not be reproduced in whole or in part without prior written permission.
End-Story: Richard Feldman

Show: FRESH AIR
Date: JANUARY 20, 1999
Time: 12:00
Tran: 012003NP.217
Type: FEATURE
Head: Tom Diaz
Sect: News; Domestic
Time: 12:40

TERRY GROSS, HOST: At the National Conference of Mayors later this month, mayors will discuss the feasibility of filing lawsuits against the gun industry similar to those already filed by Chicago and New Orleans.

My guest, Tom Diaz, supports these suits. He's the policy analyst for the Violence Policy Center, a think tank working to reduce gun violence. Diaz is also the author of the new book, "Making a Killing" about how guns are marketed and sold in the U.S.

Do you think that these city's suits against the gun industry are going to have a big impact or do you see them as just another step along the way, and next year there will be another trend and there will be some kind of cumulative effect perhaps, but the major effect isn't going to be these particular suits?

TOM DIAZ, SENIOR POLICY ANALYST, VIOLENCE POLICY CENTER: No, I think these suits will have both a cumulative and a major effect. I am not a person who believes that necessarily that any of the existing lawsuits will be smashingly successful and that we'll bring the gun industry to its knees.

But I do believe that they reflect a different way of thinking about firearms litigation, and I think they're the beginning stages, if you will, of a longer process. One of the problems may be that the gun industry itself may not realize that it is now in a different ball game than it's been used to; where it has controlled the playing field and been, really, the better financed, if you will, the better lawyered, the better litigated team. I think that's changing.

GROSS: How is it changing?

DIAZ: It's changing in a couple of ways. One is that through the efforts of organizations like ours and other's people are starting to learn more about how the gun industry actually works. We're not just looking at firearms -- and a point that was made earlier that, well, all guns are lethal so a gun is a gun and these are bad and we should sue and stop them.

That doesn't get very far, and that's the approach that's been tried in the past. But when one looks at the actual things that the gun industry does or that it does not do to lessen the impact of this inherently and demonstrably lethal product, then we're beginning to find out some very interesting things. And I think those things are opening up avenues of theory making by lawyers in litigation.

And then of course we have the element -- that we have the model of the tobacco litigation. And quite frankly, as has always been the case under our system of torts, lawyers are beginning to get interested in this. And they will push the envelope and the margins, and the gun industry will find itself constantly facing new theories, new ideas, new research.

GROSS: Well, what are the new things that you think we're likely to learn from these suits?

DIAZ: One of the processes that goes on in any lawsuit is the discovery process. And we're going to find out what thought does the industry actually give to, for example, the questions I raise in my book about lethality of firearms? What thought does it give to selling guns to dealers beyond the requirements that they have a federal license?

The gun industry likes to say it's heavily regulated because everybody has to have a license. But there are several well documented cases of people with licenses selling firearms routinely to gangs, and not just hundreds but thousands during the year.

The question is, in the distribution process what care does the industry give to ensure that that doesn't happen? Now, I understand very well what the industry says today, that's not our responsibility. We follow every federal regulation faithfully.

But in tort litigation, that's not the end of the question. The question is, did you, as an industry, have a duty to be more careful? Did you have a duty to inquire into the ends of your -- the use of your product? Those are the open questions. We certainly have a point of view about how we think they ought to come out. But those are the kinds of questions that the industry will be repeatedly asked in years to come.

GROSS: Now, the Chicago lawsuit charges that the gun industry is over supplying the legitimate market and therefore creating a pool of weapons that can be sold in the black market.

Now, you write that, "although the purchase of new guns is regulated and the buyer is subjected to a waiting period while his background is checked, regulated by the Bureau of Alcohol Tobacco and Firearms, the nation's drops its guard once a new gun has been sold for the first time at a retail outlet."

Where are guns sold after that, and is that regulated in anyway?

DIAZ: For all intents and purposes it is not regulated except at, sometimes, the state and local level. And even there people will -- in law enforcement for example -- will concede in most states that even if there are laws they're very difficult to enforce.

But essentially firearms, once they leave the initial retail sale, the licensed dealer, are sold in almost any manner you can imagine. Just as you might sell a used-car or a piece of furniture, that is they're sold in flea markets or things that are called gun shows where people come in big numbers to buy guns. There sold across backyards.

So, as broad as the imagination of people is to sell things, that's how guns are sold. And actually about 40 percent of the firearms acquired every year or transferred every year in the United States are sold through these secondary or informal markets.

GROSS: The New Orleans lawsuit against the gun industry contends that gun makers failed to include enough safety devices in their weapons, and that makes their guns unnecessarily dangerous. The gun industry is not regulated by the Consumer Product Safety Commission. What kind of regulations would your group, the Violence Policy Center, like to see governing the safety of guns?

DIAZ: Well, without going into too much detail about the specific regulations, we would like to see firearms regulated in the same manner that every other consumer product in the United States is. Firearms are really the last holdout for regulation. So that means that there would be a regulatory body, and we favor the Bureau of Alcohol Tobacco and Firearms because of their existing expertise.

But they would look at firearms and determine whether the design of the firearm, from a point of view of public health and safety, really was satisfactory. And if not that agency would be able to say either you could not produce this firearm or you would have to take whatever the appropriate steps were.

Much in the same manner that when toys or mattresses or bicycles or off-road vehicles are made in such a way that a reasonable person looking at the design and the intended use can say this is going to cause a problem. Then we wouldn't probably allow -- certainly we would not allow semi-automatic assault weapons to be manufactured and sold. And we believe that ultimately handguns would be phased out through such an agency.

GROSS: What's confusing here is that, you know, mattresses and pajamas and toys and things like that are in no way designed to hurt anybody. Whereas guns are designed, in part, to kill. Not necessarily designed to kill another person, perhaps designed to hunt, but it's no big shock if a gun kill somebody.

I mean, they're lethal weapons -- they're deadly weapons. So, does that change the nature of the regulation of the safety of guns or safety devices on guns or how a gun is regulated compared to have combustible pajamas would be regulated?

DIAZ: Yes, every gun that is manufactured is by definition a lethal instrument. But there are different things that can be done in the manufacture, there are different design packages, as in the case of semi- automatic assault weapons which are really a package of accoutrements, if you will, that make that gun most useful for mass shootings of people.

There are things like the capacity of magazines -- magazines are often called clips in lay language. They are the ammunition feeding devices. When you have a magazine that can hold 15, 20, 100 even 120 rounds of ammunition, that serves almost no -- and I would say no useful purpose other than to provide the shooter with an unlimited, for all intents and purposes, package of ammunition to kill people. We've seen that in numerous of atrocities such as the Long Island Railroad massacre.

And in the case of handguns, we see designs on the market today of very small, very compact guns that can be hidden easily, not only on the person, but literally in the palm of one's hand -- in very high calibers. Meaning large bullets propelled with great force.

These are all variables that the gun industry could have voluntarily restricted, chose not to do, but in fact chose to emphasize in order to rejuvenate markets. But that a responsible product and health safety agency would probably say, we've got to go back to the drawing board with these things.

GROSS: Now, another problem that you have cited in your book is that there are a lot of guns in the United States that have actually come from other countries -- some legally, some illegally. And you suggest that this is the reverse of how the American tobacco companies sells a lot of cigarettes to Third World countries. Countries where there's less education about the harmful effects of cigarettes. How do you see the import of guns in America being comparable to the export of tobacco?

DIAZ: Well, I think of the United States really as sort of the Third World of the gun culture. Gun companies in countries like Brazil and, our neighbor to the North, Canada can manufacture firearms and ship them to the United States that they cannot, by their own laws, sell in their countries.

I'm a big fan of legislation that would say you could not import into the United States any firearm that could not be sold, in the country from which its exported, in the ordinary civilian market. And that would cut a great deal of the gun imports out of this country.

And yes, it's true, about a third of the handguns, for example, marketed in the United States come from abroad. Most people I talk to have the impression that the United States is an exporter of civilian firearms and that we're responsible for civilian firearm violence in the world, when it's really quite the contrary.

GROSS: You say that the gun industry is concerned about future sales. First of all, they're afraid that guns don't wear out the way, say, automobiles do. And you can use a gun for a really long time, you don't have to replace it with a newer model just to get something that functions. And that the gun industry is also concerned that it has to have some kind of incentive for people to keep upgrading their guns to buy new models. What do you see as being some of the ways the gun industry is trying to expand sales?

DIAZ: There are a number of things. And it's not -- is not that the gun industry is afraid, they know this for a fact that their markets are flat for all the reasons you articulate. In the past, here are some of the things that the gun industry has done and that I document in my book.

The whole phenomenon of semi-automatic assault weapons in the 1980s was a function of gun industry marketing. The appearance of high-capacity semi-automatic pistols, the so-called "wonder nines" were a function of gun industry marketing. And that's being continued to play out in the manufacture of these much smaller guns I was talking about in higher calibers.

I'm doing some work right now that, to me, is just about as cynical and crass an example of gun industry marketing as I've seen, and that is the marketing to civilians of sniper rifles. These are not hunting rifles with telescopes or shooting scopes mounted on them.

These are rifles that were designed principally for military and police application, and are now being presented to the civilian market. It's something that I first noticed when I was researching the book and I didn't have a lot of time to look into it. And I'm doing it now, and it's about as cold an example of selling something just to keep the market killing as I've seen.

Finally, the industry is looking to new populations. They're looking to market to women in particular for a couple of reasons. One, in our society with single parent households -- the single parent most often is a mother. And they see that as having two benefits.

One, if they can get the mother interested in firearms that's good. But she's going to have an influence over the children, and they know from all sorts of studies that the earlier a person is introduced to firearms the more likely that they're going to continue.

GROSS: In 1994, the Justice Department published a survey that said that "one of the best predictors of gun ownership was the presence of firearms in the respondents childhood home." In other words, if you grew up in a home with guns you're more likely to be a gun owner when you become an adult.

Now, you suggest that the gun industry agrees with that Justice Department survey and that they're working really hard to try to encourage parents to include their children in gun related activities.

DIAZ: That's true. The gun industry does believe that that's true. They say that in their strategic meetings. They know that hunting as a sport, for a variety of reasons, is diminishing. And they know that since we no longer have a uniform draft, that young men are not introduced to firearms through the military.

So, they openly strategize, and by openly I mean within their own publications which I read a lot of, about the need to bring children into the shooting sports through their family activities. That's not a secret. That's a very open thing the gun industry talks about.

GROSS: My guest is Tom Diaz of the Violence Policy Center. We'll talk more after a break.

This is FRESH AIR.

BREAK

GROSS: My guest is Tom Diaz. He's a senior policy analyst with the Violence Policy Center, and he's author of the new book "Making a Killing: The Business of Guns in America."

Although you are now pretty strongly anti-gun, you used to be an NRA member. Your father was a career army officer. You learned to shoot in the Boy Scouts as a teenager in Mississippi. You were on a rifle team in high school. You handled guns during service with the Air Force reserves and the National Guard. You competed in a pistol league. You've owned handguns and shotguns. What made you change your mind about guns?

DIAZ: I think -- I've thought a lot about this, and I think the single point that I can put my finger on that really changed the way I thought about guns was my service on the House Crime Subcommittee. When the person who did the gun account, as they say, left and because I knew something about guns I was then the counsel who took over the gun account.

And one of my first responsibilities was organizing hearings about the impact of firearms on children. In fact, we called that hearing Kids and Guns. And when I began to hear firsthand, from interviewing these children before the hearing and then actually seeing them in the hearing, the impact that these guns were having in their lives it impressed me how very different that was from the kind of rhetoric that one learns and repeats when one is in the firearm culture.

And I also, through the process of these hearings, began to see that the guns that are on the streets of America today are markedly different from the guns that were on the streets 25, 30 years ago. Semi-automatic assault weapons, high-capacity pistols, and now we're starting to see sniper rifles. These kinds of things are not like the golden era of the 1950s or what have you.

And even in the shooting sports -- when I shot I shot on what's called a standard pistol course where we shot at the familiar bull's eye paper target. Now we see an enormous amount of aggressive, and in some cases I think almost wishful gun play, where there are scenarios called combat shooting that really are only designed to simulate circumstances in which a person is involved in a shootout, if you will, with another person. And that concerns me about our culture, generally, and specifically about the gun culture.

GROSS: You say that you started to compare the rhetoric of the gun industry with what you were seeing consulting to the House Crime Committee. Would you make that comparison for us?

DIAZ: One of the things that -- not only the industry, but I think people -- I like to use to use the term "the gun culture" generally, which includes the industry and consumers and the National Rifle Association -- believe in very strongly is of course the Second Amendment. And they believe in a specific interpretation of the Second Amendment which is that it provides an unlimited personal right to the ownership and possession of almost any imaginable form of firearm.

And that is tied into the belief that this is an essential part of keeping our country free. When a person gets wrapped around that culture it becomes almost a self-fulfilling thing that you see any form of regulation, however modest, it is really part of an ultimate plot to take away freedoms.

On the other hand, one can look at it in an entirely different way which I came to look at which is that there is almost no freedom in this country that is absolute. And I do not believe that the Second Amendment is absolute. Certainly no federal court has ever ruled that. And that there is a balance that one has to strike.

The NRA likes to say, "guns don't kill people, people kill people." I believe that there's a shared responsibility. The proliferation -- the availability of firearms and of specific types of firearms, combined with bad things about human nature which I don't deny kill people. And they do it on a scale and in the United States that's unprecedented anywhere else in the world.

So, I think it's the ability to be a little bit balanced about this. The ability to see that there are things about guns themselves that we can do something about. And just plain caring for other human beings.

GROSS: What do you think the minimal gun ownership rights should be?

DIAZ: I think one should have the right to own firearms that do not conflict unreasonable likelihood of harm or injury to others as a generic thing. That sounds like a lot of lawyerly double talk. I'll try to make it more precise.

I have no problem with ordinary hunting firearms. I don't even have a problem with shotguns, and I don't have a problem with shotguns as a form of home defense. In fact, it's probably one of the most reasonable ways to go. I'm not for banning firearms or putting the industry out of business. But I do think that certain classes of guns, if you will, are just demonstrably -- the risk of those guns is demonstrably beyond any conceivable benefit.

So, I'm a sort of modified Second Amendment person, I guess. I don't believe it's an absolute right. I believe the state can heavily regulate firearms if it chooses to do so, but I'm not in favor of banning all classes of guns.

GROSS: Tom Diaz is senior policy analyst at the Violence Policy Center, and author of the new book "Making a Killing: The Business of Guns in America."

I'm Terry Gross.

This is a rush transcript. This copy may not
be in its final form and may be updated.

TO PURCHASE AN AUDIOTAPE OF THIS PIECE, PLEASE CALL 888-NPR-NEWS

Dateline: Terry Gross, Washington, DC
Guest: Tom Diaz
High: Senior policy analyst Tom Diaz at the Violence Policy Center, a non-partisan, non-profit public policy institute working to reduce gun violence. He's the author of the new book, "Making a Killing: The Business of Guns in America." In the book Diaz writes how an attempt to increase profits, the gun industry has introduced more aggressive and lethal guns to the public. Diaz says they do this free from regulation and under a cloak of secrecy.
Spec: Guns; Weapons; Violence; Legislation; Lawsuits; Culture; Lifestyle; Tom Diaz

Please note, this is not the final feed of record
Copy: Content and programming copyright 1999 WHYY, Inc. All rights reserved. Transcribed by FDCH, Inc. under license from WHYY, Inc. Formatting copyright 1999 FDCH, Inc. All rights reserved. No quotes from the materials contained herein may be used in any media without attribution to WHYY, Inc. This transcript may not be reproduced in whole or in part without prior written permission.
End-Story: Tom Diaz
Transcripts are created on a rush deadline, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of Fresh Air interviews and reviews are the audio recordings of each segment.

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