In a case that could permanently alter a marketer's responsibility for its advertising, relatives of five victims of the July 1, 1993, shooting spree have filed suit against Intratec Firearms, the Miami marketer of the TEC-DC9 used to kill eight people and wound another half-dozen.
Also named in the suit, filed in May in Superior Court in San Francisco, were the marketers of a high-speed trigger and high-capacity magazine used by the killer, Gian Luigi Ferri.
As with Intratec, the advertising by Orpheus Industries, the Montrose, Colo., maker of Hell-Fire trigger systems, and USA Magazines, a Downey, Calif., maker of a high-capacity magazine, is challenged in the suit.
Attorneys for the victims' relatives and a Washington anti-handgun organization are trying to forge new legal ground by faulting the marketers and their advertising for contributing to the mass killing.
If brought to trial, the victims' complaint could serve as an historic battleground for determining the degree to which a marketer and its ad strategy are responsible for the actions of a consumer responding to that advertising. The suit asks for unspecified compensation that could reach into the millions.
"We're alleging that the advertising by this company, Intratec, suggests a marketing strategy that was directed toward criminals," said Dennis Henigan, director of the legal action project, Center to Prevent Handgun Violence. "The design of the gun suggests that it is inappropriate for target shooting, hunting and even self-protection. Its most appropriate use is as an instrument for mass destruction ... and it is the ad claims that we are focusing on as indications of Intratec's understanding of the uses of its weapon and of the market to which it was devoting its promotional efforts."
Mr. Henigan singled out two ad claims for the TEC-DC9 as particularly ripe for legal challenge.
"They have an advertising brochure that says it is `as tough as your toughest customer' and another one that touts the weapon for having a [plastic] finish that is resistant to fingerprints," he said. "It's hard to imagine a legitimate audience for a gun that's pro- moted as being resistant to fingerprints."
Calls to the three weaponry marketers weren't returned, but Richard Feldman, executive director of the American Shooting Sports Council, was eager to reply. Intratec and USA Magazines are represented by the Atlanta-based council.
"I don't think there's ever been a lawsuit like this that alleges that the advertising demonstrated that [the marketers] knew who they were selling to," Mr. Feldman said. "Well, first of all, they don't know who the weapons are being sold to; these people are selling to wholesalers.
"In a sense, what we have here is an example of selling the sizzle of a product-sometimes appealing to a Walter Mitty-like image," he said. "It's like when Chevrolet advertises a Corvette or you see a Porsche ad; you never see it advertised based on the value of its brakes but instead as a high-performance vehicle capable of going 140 mph. I don't think Chevy is advocating driving it 140 through the streets of Washington even though it's capable of that."
Similarly, Tom Wyld, spokesman for the National Rifle Association, dismissed the "tough as your toughest customer" claim accusation as frivolous. "That's tough as in demanding," Mr. Wyld said. "Dodge trucks were ram-tough, you recall."
California provides a friendly environment for filing such lawsuits, said Richard Leighton, an advertising lawyer in Washington.
"The California unfair business practices statute is known as the slop-bucket statute," said Mr. Leighton, a partner at Keller & Heckman. "It's kind of like the Federal Trade Commission's unfair practices authority: Anything that is arguably wrong is arguably an unfair business practice. It may be a bit of a stretch, but the attorneys would be negligent if they didn't try it. It's difficult to defend against and intimidating enough to perhaps cause a settlement."
Mr. Feldman challenged a claim by the survivors' attorneys that a key ad claim by Intratec-"excellent resistance to fingerprints"-shows the company's ad strategy targeted criminals, real or potential.
"A big problem with firearms is finger grease on a gun, and the acid from it that will ruin a metal," he said. "That's why stainless steel is better than the usual blue finish."
Tom Hill, information specialist at the U.S. Bureau of Alcohol, Tobacco & Firearms, backed Mr. Feldman on that point.
"We can lift fingerprints from just about anything; we can lift them even from a brick," Mr. Hill said. "That [ad claim] probably means that fingerprints have oil in them that acts as a corrosive."