Race at Issue in Opening Arguments of Gun Industry Trial

[MORTARDUDE]

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Race at Issue in Opening Arguments of Gun Industry Trial
Daniel Wise
New York Law Journal
04-01-2003


Lawyers pressing a closely watched lawsuit against the gun industry Monday framed their opening statements in racial terms, claiming that blacks are disproportionately harmed by guns that end up in the hands of criminals.

But lawyers for the industry returned fire, claiming an absence of proof that gun manufacturers or distributors had done anything improper in marketing their product. They insisted that guns end up in the wrong hands because of the extensive efforts of criminals to "circumvent the law," and that investigations of how this happens should be left to law enforcement authorities.

The case is the second in four years seeking to impose reforms on the gun industry to go to trial before Eastern District of New York Judge Jack B. Weinstein. Although at least 32 other cases have been brought against the gun industry, the two assigned to Weinstein are the only ones to date to go to trial. Both cases have been brought by Elisa Barnes, who has a two-lawyer practice, with the most recent case being assigned to Judge Weinstein as a related case.

Barnes, in a case brought by the National Association for the Advancement of Colored People to seek reforms in the way guns are marketed, stressed the disproportionate harm from gun violence that befalls blacks and members of the civil rights group.

She ticked off what she described as "shocking statistics" produced by handgun violence: black teen-agers in New York City are more than 10 times as likely to be killed by firearms than white teens; nationwide for teens ages 16 to 19, the ratio is 16 blacks killed for each white youth.

Barnes, however, spent much of her hourlong opening statement educating the 12-person jury about U.S. Bureau of Alcohol, Tobacco and Firearms' "trace data," which will form the core of the NAACP's case that the gun industry's marketing practices have resulted in pistols ending up in the hands of criminals.

The data consists of 400,000 traces that the ATF conducted on guns recovered in "bona fide" criminal investigations between 1989 and 2000, Barnes explained. The agency can use the serial number of the recovered gun to trace it back to the manufacturer, and then back down the chain of distribution to the first purchaser.

Barnes asserted that data and other evidence will show "a diversion of products left and right out of the legal market" into the hands of "actual shooters, the people who pull the trigger."

James P. Dorr, who was the first of four lawyers scheduled to speak for the gun industry, told the jury that when they examine the evidence there would be no proof of a causal link between any acts of the 69 manufacturers and distributors sued in the case and handgun deaths.

There are several gaping holes in the NAACP's proof, he asserted. For one, he said that because a large percentage of the handguns in circulation have been sold secondhand, rather than new, they are completely beyond the power of the industry to control. He also pointed out that many of the guns "traced" by the ATF may never have been used in crimes, and, even if they were, a trace did not establish that anyone in the chain of distribution had done anything wrong.

The jury consists of seven men and five woman; six are minorities and six are white. It will act in an advisory capacity to Judge Weinstein because the NAACP is seeking only injunctive relief and is not asking for monetary damages. The trial is expected to last at least five weeks.

Four years ago, in the first round of litigation before Weinstein, a jury returned a $4 million verdict for plaintiffs. That verdict, however, was overturned when the New York Court of Appeals in 2001 ruled that the causal link between the gun industry's marketing practices and shootings by criminals was too tenuous to support a negligence award.

But the court in a footnote left open the door to a future suit, noting that 1998 data from the ATF shows that a tiny proportion of licensed gun dealers -- about 1.2 percent -- accounted for 57 percent of guns subject to the agency's traces. At some "future time," the court suggested, it might be possible to demonstrate the existence of "a core group of corrupt [dealers]," a development that "might alter the duty equation."

That is precisely the needle that Barnes and the NAACP are trying to thread in this case, which is being brought against more than 39 gun manufacturers and 30 distributors.

Extensive trace data became available for the first time last summer. Under pressure from Judge Weinstein, who had hinted he would order the ATF to disclose data, the agency yielded 11 years worth of data covering 1989 through 2000 under a protective order prohibiting the release of any information that could identify a specific investigation.

This time around, Barnes also has an industry insider. Robert A. Ricker, a former executive director of an industry trade group, the American Shooting Sports Council, is willing to testify against the industry. Monday, Barnes did not reveal the details of Ricker's expected testimony, but he has said in a sworn statement that the industry has long known that some dealers sell guns to criminals but have pressured each other into remaining silent.

Barnes is relying on a nuisance theory rather than negligence this time around. Rather than seeking money damages, the NAACP is seeking reforms that would require manufacturers and distributors to cut off dealers whose guns disproportionately end up being used in crimes. Other measures would prevent dealers from selling more than one gun to an individual in a month, and would require dealers to show true indicia of owning a business to prevent bulk sales to those who only sell weapons at gun shows or from their homes.

New York state has a nearly identical case pending before the Appellate Division, 1st Department, from a 2001 ruling dismissing its nuisance suit for injunctive relief on the strength of the Court of Appeals' 2001 ruling in Hamilton v. Beretta U.S.A., 96 NY2d 222.

While the state had received some trace data from the ATF, it was not nearly as broad nor as informative as the nationwide data obtained by the NAACP. New York was only able to obtain trace data relating to guns recovered from crimes committed within the state.

New York City also has sued the gun industry in a related case before Judge Weinstein. But the city's case has been stayed pending the 1st Department's decision in People v. Sturm Ruger & Co. In addition to the state and city, 31 other localities have brought challenges against the gun industry, which have been consolidated into 23 lawsuits.

Andrew Arulananam, a spokesman for the National Rifle Association, said that seven of those cases had been definitively defeated by rulings from states' highest courts.

But Mathew Nosanchuk, the litigation director of the Violence Policy Center, a gun-control group, countered that intermediate appellate courts in several states, and the Ohio Supreme Court, had allowed suits against the industry to proceed.

Additionally, Nosanchuk said, the industry's victories in several states, such as Louisiana and Georgia, were the result of laws enacted to bar suits seeking to impose liability on the gun industry.

The other lawyers scheduled to make opening statements Monday for gun manufacturers were John F. Renzulli, of Renzulli, Piscotti & Renzulli, and Thomas E. Fennell, of Jones Day in Dallas. David R. Gross, of Saiber Schlesinger Satz & Goldstein, was scheduled to speak for the 30 defendant gun distributors. Dorr of Wildman, Harrold, Allen & Dixon in Chicago also spoke for the manufacturers.

Dennis Hayes, the general counsel of the NAACP, delivered brief but impassioned remarks for the group.