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Litigation, Reputation, and Vilification: How Gun Activists Cannot Lose for Winning
William Haltom & Michael McCann
Western Political Science Association 2 April 2010
Litigation, Reputation, and Vilification
How Gun Activists Cannot Lose for Winning[1]
William Haltom / Michael McCannUniversity of Puget Sound / University of Washington
Prepared for presentation to the Western Political Science Association in San Francisco on 2 April 2010 as part of Panel 07.05 “Politics and Litigation”
Litigation, Reputation, and Vilification: How Gun Activists Cannot Lose for Winning
William Haltom and Michael McCann
In a previous paper (McCann, Haltom, and Fisher 2009) we explored “creeping criminalization” of production and marketing of tobacco. We reviewed how ostensibly civil litigation had evolved to “crimtorts,” a hybrid of criminal and civil litigation favored in white-collar prosecutions. That paper argued that “… in official legal venues legal action against tobacco mixed elements of civil with criminal in an increasingly complex, tangled web of legal challenge” (McCann, Haltom, and Fisher 2009:12). As a result, mass media disseminated tales of responsibility, liability, and culpability that tarred the reputations of those who provide consumers nicotine. In this paper we look for “creeping criminalization” in litigation over the manufacturing, marketing, and distribution of firearms, especially handguns. We find evidence that the tangled webs of legal challenge that afflicted Big Tobacco in the 1990s have afflicted much smaller and more vulnerable firearmscompanies in the late 20th and early 21st centuries. Newspapers increased reports of the responsibility, liability, and culpability of manufacturers or marketers of firearms. Firearms reformers who emulated tobacco reformers appear to have fomented in newspapers “cresting criminalization:” a huge increase in frames that assigned responsibility, liability, and at times culpability to makers and marketers of firearms.
This paper first reviews “creeping criminalization” as four shifts evident in litigation against tobacco companies and concomitant coverage of disputing and policy-making in The New York Times. Next, the paper shows how crusades against firearms emulated crusades against tobacco, which suggests that reports, features, and editorials about firearms in major U. S. newspapers might greatly resemble tobacco’s press, especially when we recall the broader cultural context of fiction and films that enveloped tobacco and firearms crusades alike. After briefly introducing the two samples of newspaper coverage that supply our data, we search for criminalizing coverage. While we do not find that newspapers directly vilified actors or agents on any side of the firearms battle, we find considerable evidence that frames in coverage greatly disadvantaged firearms interests and proclaimed the responsibility if not the culpability of firearms makers, distributors, and dealers for social problems and evils. We conclude that firearms crusades criminalized firearms interests in the papers, but we draw attention to the short span within which the battles were most pitched. We suspect that we have discovered that struggles over firearms resulted in criminalization that did not creep so much as crest.
“CREEPING CRIMINALIZATION”
Although mechanisms of civil litigation have long been comparable or complementary to mechanisms of criminal litigation, especiallyprosecution of white-collar crime (Simons 2008), legal campaigns against tobacco, we found, transformed as they burgeoned. The four transformations that we have dubbed Creeping Criminalization involve shifts from tobacco suits that more closely resembled private, civil litigation to tobacco suits far more public and quasi-criminal. In homage to Sir Henry Maine,[2] we label each transformation as a shift from relatively civil forms to at least somewhat criminal forms.
From Liability to[ward] Culpability―Early tobacco suits relied heavily on traditional tort principles, meaning that plaintiffs had to persuade judges or juries that tobacco products injured consumers and to establish that the producers were negligent or reckless, could foresee the harmful impacts of their products, and thus breached their duty of due care. Tobacco corporations routinely foiled legal claims by disputing evidence of injuries and by insisting that the statutorily required warnings on cigarettes adequately informed consumers about the risks, thus fixing responsibility on the choices of smokers and/or governments. Because jurors and judges attributed great weight to “individual responsibility,” corporate producers dodged legal liability not merely consistently but constantly.
After persistent failures in hundreds of actions invoking such conventional tort claims, anti-tobacco activists advanced a different challenge: corporations knowingly, willfully conspired to supply disinformation or outright lies intended to mislead the public about scientific research on tobacco and to hide the boosting of nicotine’s impact as well as deliberately targeting advertising to children and minority groups. This challenge shifted litigation from familiar tort principles of negligence or reckless indifference to claims framed as fraud on consumers and misrepresentations to legislators and citizenry alike. Once reformers got beyond negligence to quasi-criminal liability, state attorneys general could rely on evidence of criminal fraud by “Big Tobacco,” especially with evidence provided by whistleblowers. States such as Minnesota and Florida produced scores of thousands of documents during Medicare cases by invoking the “crime-fraud” exception to strip away the attorney/client shield from lawyers for Big Tobacco. Representative Marty Meehan [D-MA]delivered a “prosecution memo” alleging acts of perjury, fraud, and conspiracy by tobacco officials after tobacco executives brazenly proclaimed their innocence in 1994 congressional hearings. By 1997 a full-time Task Force in the Fraud Section of the Criminal Division of the Department of Justice was established to investigate the allegations of conspiracy under the “Racketeer Influenced and Corrupt Organizations Act” [commonly referred to by the acronym RICO].
This shift in framing, we argued,not only outflanked attribution of responsibility for health risks to consuming individuals or to governmental regulators but also tainted corporate officials with misrepresentations, misprisions, and mendacity. Thus was straightforward products liability repackaged as producers’ criminality.
From Private Parties to Public Actors―Private attorneys representing identifiable, usually individual, plaintiffs who had suffered injuries or deaths of loved ones instituted early cases against tobacco companies. Some regarded such independent advocates as “private attorneys general” when they sought to regulate corporate behavior through civil suits; few regarded such private advocates as prosecutors. Public prosecutors or executive branch regulators usually represented the general public [“the people”]and consulted with discrete ‘victims” only modestly (Simons 2008:719). As the focus of tobacco cases shifted from products liability to producers’ criminality, however, private attorneys such as Richard Scruggs and Ron Motley yielded much of the public stage to state attorneys general. The state AGs claimed to act in defense of the general public who bore costs of increased health services or were subjected to illegally fraudulent behavior of corporate giants. The attorneys general and select legislators who negotiated settlements emerged as the media “heroes” of this episode, as often is the case in routine criminal prosecutions; the private attorneys were relegated to the background, except for a very short period in 1997 when industry officials saturated newspapers with stories of excessive attorneys’ fees. In short, the mechanism and agents driving the state litigation were far more similar in fact, and even more in mass-mediated accounts, to prosecutorial action against white-collar crime than to private tort actions.
From Remuneration to Regulation and Retribution―State lawsuits against Big Tobacco likewise resemled criminal actions more than traditional civil models in “remedies” sought. Whereas conventional, private tort actions have sought compensatory damages to redress individual injuries and to make victims whole, prosecutions usually have sought to punish via a combination of incarceration, fine, or injunctionthose proved to have committed injuries. Moreover, fines usually accrued to governments rather than to citizens or attorneys. On the other hand, punitive damages in tort actions have blended features of civil and criminal law (Simons 2008:72). Damages negotiated as part of the Master Settlement Agreement with tobacco companies looked more criminal than civil. Nearly $250 billionwas represented and justified in almost entirely in public regulatory, deterrent, and punitive – quasi-criminal – terms. Most of the monetary damages went directly to governments and not to private victims, likewise far more similar to criminal penalties, underlining the quasi-criminal nature of crimtorts. The fees allocated to private attorneys, in absolute terms large but relative to overall sums small, also lessened any resemblancesto ordinary civil litigation. All in all, the normative logicand public representation, of the settlement – imposing regulatory restriction as well as moral stigma on the defendants, reinforcing social norms and punishing behavior – is much closer to a criminal than a tort law model (Simons 2008; see Kagan 2002).
From Civil Suits to Crimtorts―Private and public litigation against tobacco companies became inextricably intertwined with explicitly criminal prosecutorial action from the mid-1990s on. Lawsuits have continued to focus on white-collar issues of fraud, conspiracy, and misrepresentation, documenting that hybrid of civil and, especially, criminal elements that some legal scholars refer to as “crimtorts” (Koenig and Rustad 2004, 1998; Simons 2008; see generally Youngdale 2008). At the same time, new concerns about other dimensions of criminal complicity in illegal smuggling by the tobacco industry surfaced following the Master Settlement episode. Federal investigations were initiated by a U.S. Customs undercover team against Brown and Williamson in New Orleans for connections to criminal smuggling of cigarettes into Canada, leading to a successful prosecution. This was followed by more investigations, charges, and trials. Most actions were technically founded in civil law, but allegations of racketeering, smuggling, and fraud, often joined with international protests that the tobacco industry was committing “crimes against humanity,” reiterated the long developing quasi-criminal indictment in public.
Criminalization of Cases and Coverage―Thefour shifts and concomitant coverage in The New York Timesshould not be overstated. We intended “criminalization” to convey movement from a relatively civil model of disputing and coverage toward a relatively criminal model of disputing and coverage. We did not claim that tobacco executives or corporations had been criminal. Rather, we meant that reports of tobacco disputes accumulated more and more indicia of crime even as tobacco companies risked greater and greater liabilities. This combination of gradually increased perceptions of civil liability and gradually increased suspicions of criminal or quasi-criminal activities is what we meant and mean by “Creeping Criminalization” (see McCann, Haltom, and Fisher 2009).
FIREARMS LITIGATION IN COURT AND IN CULTURE
Because activists against firearms had explicitly emulated strategies and tactics from litigation against delivery systems for nicotine (McIntosh and Cates 2009: 101, 217 n. 1; Lytton 2005:1-35),we wondered if firearms suits might work criminalizationsimilar to what we found in coverage of tobacco suits in The New York Times. Suits against firearms makers and dealers are both similar to and different from suits against tobacco companies, so some sullying of makers and dealers reputations might be expected.
Individuals sued firearms makers long before individuals sued tobacco companies, but in the first few decades suits against firearms companies had as little success as suits against tobacco. However, “… the idea of mass action based on the tobacco model bloomed very quickly and full-blown” (McIntosh and Cates 2009:101). The mass actions at first adhered to fairly routine theories of tortuous liability. In 1994 relatives of victims of handguns and a lone survivor sued 25 makers of firearms for negligent marketing. Suits for negligence and public nuisance followed. In sniper suits and other actions, defendants included distributors and dealers. These, too, were fairly straightforward negligence suits.
During the second term of the Clinton Presidency, however, officials sought some degree of regulation through innovative actions for negligence and nuisance, shifting litigative strategies from private actors to public actors and from remuneration to regulation. The Clinton Administration’s Department of Housing and Urban Development threatened to litigate on behalf of more than 3,000 housing projects beset by gun violence. The Administration and HUD sought compensation for costs in protecting the housing projects, but the larger aims were to change marketing practices that were “irresponsible” and to get safety features added (McIntosh and Cates 2009:104-105).
Then public actors began to seek regulation and retribution by adding theories of culpability or criminality to their actions for liability (see McIntosh and Cates 2009:105-122). When state and local governments went after firearms manufacturers – starting with the Castano Group in New Orleans and Chicago and CookCounty in 1998 – theories had shifted away from traditional liability for abatement of nuisance or defective product design toward attacks on deceptive advertising. Much as they had done in tobacco disputes, revelations of deception, duplicity, and deceit by manufacturers, wholesalers, and retailers of firearms moved lawsuits from policy disputes and compensation for externalities toward fraud and outright criminality. Although use of “trace data” from the Bureau of Alcohol, Tobacco, and Firearms was banned from gun suits by Congress in 2005, information on webs of illegal distribution and sales of firearms became public, much as whistleblowers’ releases and lawyers’ depositions and discovery became public in nicotine cases. Concerning firearms as concerning tobacco, publicization of illegal promotion and dealing pushed matters even further toward criminality and away from mere liability. Judge Weinstein allowed a New York City suit to go forward for a while based on gun distributors’ deliberate violations of laws. After that suit was barred by the Protection of Lawful Commerce in Arms Act of 2005, Mayor Michael Bloomberg took to U. S. court over gun dealers’ allowing “straw purchases.” Firearms crusades were deliberately, strategically criminalizing gun merchants (see Williamson 2007; Lytton 2000).
If public officials and lawyers thus took firearms “From Civil Suits to Crimtorts” in very few years, popular culture may have criminalized or at least sullied firearms companies further. ColumbineHigh School and other school shootings, especially as amplified by the Oscar-winning documentary “Bowling for Columbine” (2002) asked whether makers or marketers were responsible or indeed culpable for readily available tools of violence. “Thank You for Smoking” (2005), a movie based on Thank You for Smoking: A Novel (1994), brought viewers the “Merchants of Death,” lobbyists for alcohol, tobacco, and firearms interests. John Grisham’s 1996 condemnation of jury-tampering by tobacco interests in The Runaway Jury became, after the Master Settlement Agreement of tobacco cases, Brian Koppelman’s denunciation of jury-tampering by firearms interests in the screenplay for “Runaway Jury.” Koppelman’s Rankin Fitch [jury consultant for firearms defendants] is not merely criminal but evil, perhaps nihilistic( last visited 7 March 2010):
Rankin Fitch [RF]: “Wendall Rohr. An overdue pleasure. Rankin Fitch. Nice suit. Very, um, ‘of the people.’ ”
Wendall Rohr, lead attorney for the widow of firearms victim Jacob Wood [WR]: “Yours is nicer. What would you call it? ‘Gun lobby protecting its own?’ ”
RF: “Oh! Swank shoes. Big tobacco?”
WR: “Big alligator. Wrestled it myself. … What'd you do to my witness? Threaten his family? Write him a check? Just curiousabout what your technique is, Mr. Fitch.”
RF: “Maybe he, uh, decided against bitingthe hand that fed him these past few years.”
WR: “You know exactly why he came to us.”
RF: “Oh, please. Don't tell me you hungyour case on somebody'sconscience.”
WR: “I hung my case on my own conscience.”
RF: “Oh. I get it now. You are a moral manliving in a world of moral relativity. It's just so quaint, so precious. …”
WR: “This is about my witness, right?This is about you messing with my client, my case and the rules of lawthat govern our country!”
RF: “Our country? … I didn't figure you for a patriot,Mr. Rohr, what with your blatant disregardfor the people's right to bear arms. You know, the Second Amendment?”
WR: “Is that why you're doing this? To protect the Constitution, is that it?”
RF: “Of course not. I'm in it to win. Just like you are. … Because that's what I was hired to do. … Everything else is colored bubbles.”
WR: “Colored bubbles? Colored bubbles?! A system that calls for people to sitand listen to testimony of witnesses, fella! And that includes my witness,who you've disappeared!”
RF: “If you're relying on testimonyto win this case, you've already lost it, fella! You think this jury cares anythingabout negligent distribution? Product liability? … most of 'em can't even say the words,let alone understand the meaning. You think your average juroris King Solomon? No! He's a roofer with a mortgage. He wants to go homeand sit in hisBarcaloungerand let the cable TV wash over him. And this man doesn't give a single,solitary droplet of shitabout truth, justice or your American way.”
WR: “They're people, Fitch.”
RF: “My point, exactly. … What do you hope to achieve if you win? … You gonna bring Jacob Woodback to life? No. You just ensure that his wifegoes to the cemetery in a better car. And that the heel that she snapson the way to the gravesidebelongs to a $1200 shoe. You get your name in the paper. But Jacob Woodand all the other gun violence victimsremain rotting in their crypts.”
WR: “You know what, Fitch? You're gonna lose.”
RF: “I doubt it.”
WR: “Well, maybe not this case,maybe not the next, but someday,you know, someday. I've seen it before with guys like you. Because you cannotcarry that much contemptwithout it becoming malignant,until you're gonna be all alonein a room full of shadows,and all you're gonna haveis the memories of all thosepeople's lives you have destroyed.
RF: “That's a good story, Wendall. But it's just further proofof why you can't beat me. Because you may be right... but the thing of it is, I don't give a shit. What's more... I never have.”
The combination of searing depictions of firearms interests in popular culture and lurid charges in legal venues encouraged the expectation that coverage of firearms suits would vilify firearms interests as it had tarred tobacco interests. Indeed, many of the actions against firearms transpired at the same time as some actions against tobacco, so firearms actions might follow tobacco actions so closely as to draft on them as if racecars.