The legal effort to hold gun makers liable for gun violence in the District was back in court this week for what was likely to be a last attempt to keep the lawsuit alive in its original form.
Appearing Tuesday before the D.C. Court of Appeals, attorneys representing gunshot victims and their families, gun control advocates and the city government argued that unless their suit is allowed to proceed, they will never have the access to internal company records that could prove their claims against the manufacturers.
Last April, a three-judge panel gave the plaintiffs a modest reprieve, reversing a lower court that had dismissed the suit on a couple of points. But the panel threw out a number of arguments in the suit, and both sides asked that the full court, the District's highest, hear the case.
On Tuesday, before a packed courtroom, Chief Judge Annice M. Wagner and six other judges probed each side's arguments, examining the limits of product liability, the applicability of the Constitution's Commerce Clause and a host of other questions.
A 1990 D.C. law makes the manufacturers of assault weapons liable for injuries that result from the use of such weapons in the District, where the possession of firearms is illegal, except by law enforcement officers.
The plaintiffs charge that gun manufacturers and distributors outside the District have neglected to take action to halt the flow of firearms into the capital city, despite obvious evidence that a small number of dealers are responsible for many of the firearms in the District. The ready availability of guns on the streets of the District has become a public nuisance that the city is entitled to try to eradicate, the lawyers argue.
But lawyers for the gun makers, led by industry leaders Beretta USA Corp. and Colt Manufacturing Co., counter that the legal action by the city and its allies is flawed on many fronts.
Lawrence S. Greenwald, who represents Beretta, said in court Tuesday that the plaintiffs have failed, even in the four years since the suit was filed, to identify a manufacturer directly liable for the harm caused by a specific firearm.
Greenwald said the suit would be comparable to a person who was injured by a car, but who couldn't identify the vehicle's manufacturer, being allowed to sue all automakers in the hope of identifying the responsible one.
The premise of the suit and of the city's statute, he said, stretches the authority of the District and its government far beyond what is constitutional. "The District is imposing its policy choices on other states," Greenwald said.
But some of the judges' questions suggested that the law might allow the District some leeway in sanctioning gun manufacturers, even if they are not directly responsible for placing weapons in the hands of people in the District.
"If they do it indirectly but with full knowledge -- that's the allegation -- why is that any different?" Judge Stephen H. Glickman asked.
Judge Vanessa Ruiz, who was once the city's top lawyer, and Judge Frank E. Schwelb recused themselves from the case and did not participate in the oral arguments. No specific reasons for the recusals were given. A senior judge, William C. Pryor, participated in the oral arguments because he was among the three judges who issued the original appellate court opinion.
