http://www.sunspot.net/business/bal-naacp031703,0,1961216.story?coll=bal-business-headlines
NAACP lawsuit targets gun makers
Crime data available to manufacturers demonstrate that industry could keep track of shady dealers and cut them off, lawyers for Baltimore-based civil rights group argue
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By Vanessa O'Connell and Paul M. Barrett
The Wall Street Journal
Originally published March 13, 2003
NEW YORK -- Lawsuits that seek to hold gun makers responsible for firearm violence haven't had much success in court so far. Gun-control advocates say that is about to change.
In a novel suit headed for trial on March 24 in federal court in New York's Brooklyn borough, the Baltimore-based National Association for the Advancement of Colored People is arguing that handgun violence disproportionately harms poor, urban blacks, and that gun companies have failed to take steps to lessen the harm.
People like Frances Davis hope the NAACP wins its suit. During the past 16 years, each of her three sons died after being shot in separate street confrontations in the predominantly black Bedford-Stuyvesant section of Brooklyn. Residents "constantly live in fear, and that fear is destroying the neighborhood, communities, families," said Davis, 52 years old. "Guns destroyed my life."
The NAACP alleges that gun makers and wholesalers could take more aggressive steps to determine which gun dealers repeatedly sell weapons that end up in criminal hands -- and then crack down on those retailers. To date, that argument hasn't worked so well in a series of suits that cities and counties nationwide have brought against the industry.
Earlier this month, a California state-court judge in San Diego dismissed a group of gun-maker defendants from a suit filed by municipalities in that state.
But in the NAACP's suit, gun-control lawyers have some powerful new legal ammunition and a sympathetic trial judge as they go after gun wholesalers and manufacturers. The suit names more than 80 defendants including Smith & Wesson Holding Corp., Sturm, Ruger & Co. and Glock GmbH.
Their ammunition comes from a subpoena that a New York plaintiffs' attorney, Elisa Barnes, successfully used last fall to force the U.S. Bureau of Alcohol, Tobacco and Firearms to turn over a trove of statistics on the movement of guns used in crime -- a far bigger cache of the data than has previously been obtained by gun-control lawyers.
The ATF has collected the information for decades but resisted sharing it, saying that might interfere with criminal investigations and encroach on the privacy of some people, such as those who had legally bought guns later picked up at a crime scene. Much of the data come from gun companies themselves.
The government gives gun makers the serial numbers of any of their guns used in a crime. Makers, in turn, tell the government which wholesalers handled the weapons, and those wholesalers can identify the dealers involved.
Expert analysis of this and other data, Barnes predicted, will demonstrate that the industry itself has the ability to keep track of shady dealers and to cut them off.
In addition, an industry insider may emerge as the star witness. Robert Ricker, a 52-year-old former National Rifle Association attorney who still quietly consults with some industry interests, says he plans to testify in the case that his former colleagues consciously decided against taking certain steps to help keep guns away from rogue dealers.
He and others tried to raise these concerns and push change from the inside but were effectively silenced, he said.
Presiding over the NAACP case is Jack Weinstein, an 81-year-old semi-retired federal trial judge famous for his sympathy for creative liability theories and using the courts to resolve tough social problems. He supervised what seemed to be an important gun-control court victory in 1999 that was later reversed by the Second U.S. Circuit Court of Appeals in New York.
Barnes represented relatives of gun-crime victims in that suit. In the current case, he used his judicial authority to back Barnes's demands for ATF crime-gun records.
In an unconventional move, Judge Weinstein is putting an "advisory jury" in the box for this bench trial -- meaning he will consider the jurors' views but reserve to himself the role of ultimately determining liability and a remedy.
Gun-industry lawyers say the NAACP suit is one more illogical attempt to place enforcement of criminal gun laws on gun makers. But privately, defense lawyers say they may well lose at trial and their main focus is preparing the ground for another appeal to the Second Circuit, where they expect to be vindicated.
"We hope for the best but expect the worst," said Lawrence G. Keane, general counsel of the National Shooting Sports Foundation, a trade group.
The suit has attracted attention not only among those who debate gun policy but also in civil-rights circles.
"The NAACP has a long history of challenging the courts to think through policies that stand the courts on their head," said William Spriggs, executive director of the Institute for Equality at the National Urban League, an African-American advocacy organization. "Most of its major advances took place because it was able to use the courts to advance public policy and think about issues in a far broader way."
Industry defenders answer that gun-control advocates should take their concerns to mayors, city councils and even Congress. Gun-liability suits are a backdoor alternative to achieving limits on guns that politicians haven't been willing to legislate, the industry's Keane said.
Within the industry, Ricker, the former NRA attorney, made no secret of his view that the NRA and its allies have unnecessarily resisted identifying dubious gun dealers. In a Jan. 31 affidavit obtained by the Brady Center to Prevent Gun Violence, he said gun makers have known for years that some wholesalers and dealers divert weapons to lawbreakers.
Ricker said gun makers themselves could use the ATF's crime-gun data to identify the problem dealers, but have chosen not to.
"It's a very simple system," he said. "Gun makers get a report from the government when their guns are used in crimes. They can inquire down the line to find out which wholesaler or dealer was involved. It's easy for them to have the information, but they have to use it."
Industry lawyers say they will try to undercut Ricker's credibility by pointing out stark changes in his public statements on the topic. Keane, the gun-trade-group lawyer, said Ricker's "contention that this industry knowingly sells guns to criminals is: a.) insulting, b.) offensive and c.) patently false." The industry routinely cooperates with police and goes beyond that to train dealers to recognize suspect buyers, he added.
The judge in the California case had Ricker's affidavit before him but still dismissed the manufacturer defendants, allowing the suit to proceed against only a handful of wholesalers and dealers.
NAACP lawsuit targets gun makers
Crime data available to manufacturers demonstrate that industry could keep track of shady dealers and cut them off, lawyers for Baltimore-based civil rights group argue
--------------------------------------------------------------------------------
By Vanessa O'Connell and Paul M. Barrett
The Wall Street Journal
Originally published March 13, 2003
NEW YORK -- Lawsuits that seek to hold gun makers responsible for firearm violence haven't had much success in court so far. Gun-control advocates say that is about to change.
In a novel suit headed for trial on March 24 in federal court in New York's Brooklyn borough, the Baltimore-based National Association for the Advancement of Colored People is arguing that handgun violence disproportionately harms poor, urban blacks, and that gun companies have failed to take steps to lessen the harm.
People like Frances Davis hope the NAACP wins its suit. During the past 16 years, each of her three sons died after being shot in separate street confrontations in the predominantly black Bedford-Stuyvesant section of Brooklyn. Residents "constantly live in fear, and that fear is destroying the neighborhood, communities, families," said Davis, 52 years old. "Guns destroyed my life."
The NAACP alleges that gun makers and wholesalers could take more aggressive steps to determine which gun dealers repeatedly sell weapons that end up in criminal hands -- and then crack down on those retailers. To date, that argument hasn't worked so well in a series of suits that cities and counties nationwide have brought against the industry.
Earlier this month, a California state-court judge in San Diego dismissed a group of gun-maker defendants from a suit filed by municipalities in that state.
But in the NAACP's suit, gun-control lawyers have some powerful new legal ammunition and a sympathetic trial judge as they go after gun wholesalers and manufacturers. The suit names more than 80 defendants including Smith & Wesson Holding Corp., Sturm, Ruger & Co. and Glock GmbH.
Their ammunition comes from a subpoena that a New York plaintiffs' attorney, Elisa Barnes, successfully used last fall to force the U.S. Bureau of Alcohol, Tobacco and Firearms to turn over a trove of statistics on the movement of guns used in crime -- a far bigger cache of the data than has previously been obtained by gun-control lawyers.
The ATF has collected the information for decades but resisted sharing it, saying that might interfere with criminal investigations and encroach on the privacy of some people, such as those who had legally bought guns later picked up at a crime scene. Much of the data come from gun companies themselves.
The government gives gun makers the serial numbers of any of their guns used in a crime. Makers, in turn, tell the government which wholesalers handled the weapons, and those wholesalers can identify the dealers involved.
Expert analysis of this and other data, Barnes predicted, will demonstrate that the industry itself has the ability to keep track of shady dealers and to cut them off.
In addition, an industry insider may emerge as the star witness. Robert Ricker, a 52-year-old former National Rifle Association attorney who still quietly consults with some industry interests, says he plans to testify in the case that his former colleagues consciously decided against taking certain steps to help keep guns away from rogue dealers.
He and others tried to raise these concerns and push change from the inside but were effectively silenced, he said.
Presiding over the NAACP case is Jack Weinstein, an 81-year-old semi-retired federal trial judge famous for his sympathy for creative liability theories and using the courts to resolve tough social problems. He supervised what seemed to be an important gun-control court victory in 1999 that was later reversed by the Second U.S. Circuit Court of Appeals in New York.
Barnes represented relatives of gun-crime victims in that suit. In the current case, he used his judicial authority to back Barnes's demands for ATF crime-gun records.
In an unconventional move, Judge Weinstein is putting an "advisory jury" in the box for this bench trial -- meaning he will consider the jurors' views but reserve to himself the role of ultimately determining liability and a remedy.
Gun-industry lawyers say the NAACP suit is one more illogical attempt to place enforcement of criminal gun laws on gun makers. But privately, defense lawyers say they may well lose at trial and their main focus is preparing the ground for another appeal to the Second Circuit, where they expect to be vindicated.
"We hope for the best but expect the worst," said Lawrence G. Keane, general counsel of the National Shooting Sports Foundation, a trade group.
The suit has attracted attention not only among those who debate gun policy but also in civil-rights circles.
"The NAACP has a long history of challenging the courts to think through policies that stand the courts on their head," said William Spriggs, executive director of the Institute for Equality at the National Urban League, an African-American advocacy organization. "Most of its major advances took place because it was able to use the courts to advance public policy and think about issues in a far broader way."
Industry defenders answer that gun-control advocates should take their concerns to mayors, city councils and even Congress. Gun-liability suits are a backdoor alternative to achieving limits on guns that politicians haven't been willing to legislate, the industry's Keane said.
Within the industry, Ricker, the former NRA attorney, made no secret of his view that the NRA and its allies have unnecessarily resisted identifying dubious gun dealers. In a Jan. 31 affidavit obtained by the Brady Center to Prevent Gun Violence, he said gun makers have known for years that some wholesalers and dealers divert weapons to lawbreakers.
Ricker said gun makers themselves could use the ATF's crime-gun data to identify the problem dealers, but have chosen not to.
"It's a very simple system," he said. "Gun makers get a report from the government when their guns are used in crimes. They can inquire down the line to find out which wholesaler or dealer was involved. It's easy for them to have the information, but they have to use it."
Industry lawyers say they will try to undercut Ricker's credibility by pointing out stark changes in his public statements on the topic. Keane, the gun-trade-group lawyer, said Ricker's "contention that this industry knowingly sells guns to criminals is: a.) insulting, b.) offensive and c.) patently false." The industry routinely cooperates with police and goes beyond that to train dealers to recognize suspect buyers, he added.
The judge in the California case had Ricker's affidavit before him but still dismissed the manufacturer defendants, allowing the suit to proceed against only a handful of wholesalers and dealers.
