'Then the duh-duh-duh-duh-duh began'

Huge cigarette industry lawsuits are inspiring an LA policeman to take on gunmakers. Tim Cornwell reports
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The Independent Online
AN LAPD officer badly injured in an infamous North Hollywood shoot- out last year will file suit this month against the manufacturers of the weapons that poured bullets at him and other victims.

Martin Whitfield's case is one of several recent attempts to sue gunmakers in shootings, partly inspired by the success of law suits against the cigarette industry. His lawyers face an uphill battle. But by suing, Officer Whitfield hopes to stop the sales, manufacture and distribution of weapons "designed for war". "No one should need this kind of firepower," he said.

American courts have long rejected claims that gunmakers are liable for the injuries caused by the weapons they sell, barring a design defect or a "failure to warn". A suit over a weapon that misfired is more likely to succeed. But "the Holy Grail is to attach liability to a manufacturer for an intentional shooting," said Joshua Horowitz, of the Firearms Litigation Clearing House in Washington, an anti-gun-violence group. They dream of finding the legal formula that pits America's sue-happy legal system against its gun-crazy culture and an arms industry that has defied political attempts to impose gun control

In New York, a suit against US gunmakers is set for trial this October, accusing a string of companies of negligence in the sale and distribution of guns trafficked illegally into the state. The plaintiffs are victims of shootings, mostly by teenagers. Defendants include Smith and Wesson, the biggest firearms manufacturer in the US, owned by the British conglomerate Tomkins.

The mayor of Philadelphia recently convened a team to examine whether to file a public nuisance suit on the grounds that by flooding the market with guns, gunmakers are contributing to crime in his city. And in Massachusetts, there are moves to ban the small, cheap pistols known as "Saturday night specials" under consumer protection laws.

Martin Whitfield, 31, arrived early at the scene at the Bank of America branch in North Hollywood, on 28 February last year on a rare "robbery in progress" call. On his way, he imagined he'd encounter men with .45 pistols. But as he stepped out of his patrol car he heard the "duh-duh- duh-duh-duh" begin. Two men, Emil Matasareanu and Larry Phillips, em- erged from the bank in full combat gear, armed with fully automatic assault rifles, spraying bullets. Live TV pictures from heli- copter news teams captured the 40-minute gun battle. There were 17 police and civilian casualties; 32 officers fired their weapons, at least 2,000 shots were exchanged.

Outgunned police at one point commandeered weapons from a local gun store. Bullets pumped into Officer Whitfield's car. It was hit 57 times. "The radio was busted, transmission fluid, oil, every fluid but gasoline came from the car. All the windows were busted out. There was a bullet hole through the head rest."

He took cover behind the engine block, but was hit twice, in the arm and buttock, leaving scar holes and metal fragments in his hand and forearm. Bullets were going "through the length of the police car, bumper to bumper, and into me." There was nothing to do but "literally run for my life". He reached a tree before being shot twice more, then emptied his own magazine at the gunmen. One bullet went through his body armour; another exploded into his right leg and hip.

US gunmakers were massed at the annual Shooting, Hunting and Outdoor Trade (SHOT) show in Las Vegas this week. They have long dismissed the threat of personal injury law suits, forever arguing that "guns don't kill people, people kill people".

Mr Whitfield's lawyer, John McNicholas, heads a small firm of high-powered trial attorneys who represent major corporate clients, but have also won million-dollar cases for other LAPD officers. The suit is expected to argue that large-magazine, rapid-fire assault guns are an "ultra-hazardous product" that have no "social utility" other than to seriously injure or kill as many people in as short a period as possible.

Crime rates have fallen steeply recently. But there were 36,000 firearms deaths in 1995, a year when more than 4 million guns were made. By some estimates, gun sales worth $2.5bn (pounds 1.5bn) a year, are matched against $20bn in medical costs and lost product-ivity from shootings. The bank robbers used six guns, picking the most powerful from a collection of two dozen, investigators say. They carried three Chinese-made Norinco assault rifles and a .308 Heckler and Koch, at some point, converted to fully automatic. California has banned these weapons, but they or similar models are still said to circulate widely.

The shoot-out has spurred a plethora of law suits. The family of one gunman - both died, one by his own hand, after being hit repeatedly - are suing the LAPD. Mr Whitfield's suit, which must be filed before the shooting's anni-versary, will name the dead man's estate, as well as the gunmakers.

A father of three, he walks with an awkward gait, his right hip and thigh held with metal pins. The shooting broke his spirit as a policeman and he wants to hang up his uniform. He keeps five handguns, but the weapons used on him are "not home protection. Shoot these things in your home, they go through every wall in your house and your neighbour's. It doesn't make sense."

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