November 15, 2002 8:50 a.m., National Review Online
Gunned Down
The case for prohibiting abusive lawsuits.

By Dave Kopel     

esterday in West Palm Beach, a jury imposed $1.2 million in damages against Valor Corporation, a wholesaler which distributes a wide variety of products, including firearms, to retail stores. While a 2000 Florida law prohibits abusive lawsuits by local governments, Thursday's case shows the necessity of stricter laws, at both the state and national levels, modeled after statutes in states like Colorado, which prohibit all abusive lawsuits.

In May 2000, Nathanial Brazill stole an unloaded handgun and some ammunition from a family friend. A few days later, after being ordered to go home early because of a disciplinary violation on the last day of school, he announced that he was going to kill a school counselor and that he would be "all over the news." He went home, retrieved his stolen gun, and hurried back before school closed, evading security by sneaking in a back entrance used for deliveries. Inside the school, he met teacher Barry Grunow in the hallway. Brazill knew that he was going to fail Grunow's class. Brazill pointed the gun at Grunow's face, held it there for eleven seconds, then pulled the trigger and shot Grunow dead. A few days before, Brazill had showed off his stolen gun to a friend, and demonstrated how to disengage the safety. (If a gun's safety switch is set to "safe," the gun will not fire even if the trigger is pulled.)

Brazill claimed that even though he disengaged the safety and pointed the loaded gun at Grunow, he did not mean for the gun to go off (even though the only way for the gun to have discharged is for Brazill to have pulled the trigger). Brazill, who was 13, was brought to trial as an adult, and convicted of second-degree murder. The jury rejected the defense lawyer's claim that the killing was an accident, which would have required the jury to find Brazill guilty only of manslaughter. He is serving a sentence of 28 years to life.

Already making plans for his release, from prison, Brazill sent out a message to a friend, instructing the friend to meet Brazill at the prison gates and bring him a Tec-9 pistol.

Yesterday's civil jury verdict is the culmination of a lawsuit brought on behalf of Mr. Grunow's widow by Bob Montgomery, an anti-tobacco trial lawyer. Montgomery was assisted by the Brady Center, the mastermind of many dozens of abusive lawsuits against firearms companies, including the abusive municipal lawsuits.

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. Instead, the jury found that the victim of Brazill's gun theft was 50 percent responsible, the school board was 45 percent responsible for failing to keep Brazill off campus, and the firearms wholesaler was 5 percent responsible. (The firearms manufacturer, Raven, is out of business, because of a fire in 1991.)

The crux of the plaintiff's argument was that the gun was defective because it did not have a device to prevent thieves like Brazill from using the gun. Under this theory, almost every firearm ever manufactured is "defective." As I detail in a Connecticut Law Reviewarticle, such guns don't yet exist. Prototypes have such severe reliability problems that police are vehemently opposed to being forced to use such guns. Thus, every proposal to mandate such guns for ordinary citizens (including a bill that the New Jersey assembly will vote on next Monday) includes an absolute exception for the police. The police exemption, however, demonstrates that the prototype guns are not, and the eventual commercial guns will not be, reliable enough to use for self-defense. Lower-tech "authorized user" laws — such as Maryland's law mandating that, starting next year, locks must be integrated into the gun — likewise have police exemptions, again demonstrating that such devices interfere with rapid gun use in defense against a criminal attack. The Florida jury's conclusion that a gun is "defective" if it is made without attachments that impede with defensive gun use is implausible.

The tobacco lawyer and the Brady Center also attacked the particular gun, a Raven Arms .25 pistol, because it was low-priced, selling for about $75. Supposedly, the gun was unsuitable for sports, collecting, or self-defense, making it only useful for criminals. These claims too are bogus. Inexpensive pistols aren't a good choice for hunting or competition target shooting, but such guns have long been used for informal target shooting, such as "plinking" at tin cans. The Raven model obviously wasn't a fancy engraved special edition firearm, but gun collectors collect all types of guns, and some collectors specialize in small or inexpensive handguns.

More importantly, small, inexpensive guns are useful for self-defense. They're not as good as many other guns, but for a poor person in a rough neighborhood, they're much better than being unprotected. The utility of these guns for legitimate defense is implicitly acknowledged by every law and every proposed law restricting such guns — since every one of them exempts the police from the scope of the ban. No one except a criminal would want to the police to be allowed to carry unsafe and unreliable firearms that are no good for lawful self-defense. The police exemption shows that the objective of those laws is not getting rid of unreliable guns but rather taking guns away from poor people.

In the Journal of Criminal Law and Criminology, Markus Funk details how attempts to ban inexpensive guns (either by law or by lawsuit) are unjustly discriminatory against the poor.

Because guns like the Raven are owned mainly by poorer people, they are more vulnerable to theft: Poor people tend to live in neighborhoods with a relatively high percentage of criminals, and poor people can't afford sturdy locks on their doors and windows, or rugged gun safes. Thus, stolen Ravens have often been used by criminals, but this unfortunate reality does not mean that Raven or its distributors are blameworthy for selling guns that allow poor people to protect their homes and families.

Barry Grunow's widow Pam Grunow did not, of course, commit any crimes or torts. She and her children have been horribly victimized by the murder perpetrated by Nathanial Brazill. Unfortunately, the wicked Brazill has no money to pay Mrs. Grunow the immense recompense he owes her. Thus, a jury of six women (three of them teachers) had 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. If there is to be a search for people to blame other than the actual criminal, perhaps the inquiry ought to begin with the murderer's mother and stepfather — the subjects of 25 and 16 police incident reports, respectively, including for domestic violence.

Florida precedent makes it very unlikely that the Brady Center's victory yesterday will be upheld on appeal. For example, in Penelasv. Arms Technology, Inc., the District Court of Appeal affirmed the trial court's dismissal of Miami's lawsuit against the gun industry. (Feb. 14, 2001). The Florida supreme court refused the request of Miami's mayor and the Brady Center to review the intermediate appellate court's decision. Even so, Valor Corporation has been drained of hefty legal fees, and dragged through the courts and the newspapers as if were a wrongdoer. The firearms prohibition has the right to lobby for its objectives, but trying to ban a type of gun by lawsuit — the announced objective of the attorneys in the West Palm Beach case — is a usurpation of the powers of the legislature, and an unjust attempt to blame law-abiding people for the acts of a criminal. In the long run, the effect of yesterday's verdict may be to help Congress decide to enact legislation banning lawsuits which are based on the premise that a gun which functions properly is "defective" because it isn't made according to the specifications of the gun-prohibition lobby.

Dave Kopel is a contributing editor of NRO.

Update: On June 1, 2005, in Grunow v. Valor Corp. of Fla, the Florida Fourth District Court of Appeals ruled that the plaintiff had no claim against Valor under Florida law.

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