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Gun Strategists Are Watching Brooklyn Case October 5, 2002 By WILLIAM GLABERSON A Brooklyn lawsuit has become a pivotal test that could affect civil suits against the gun industry nationally because the plaintiffs have, for the first time, obtained comprehensive government information tracing gun sales. The information given to the plaintiffs' lawyers in the Brooklyn case by the Bureau of Alcohol, Tobacco and Firearms includes the sales history of guns used in crimes. Critics of the gun industry have long sought the information to try to fill what some courts have said has been missing from their cases: evidence that manufacturers knew how their guns were channeled toward illegal uses and an indication that they could have stopped the trafficking. >From coast to coast, a contention of many of the nearly 30 suits against the gun industry is that some manufacturers' handguns are used in crimes so frequently that their sales strategies amount to a violation of the public's right to safety and peace. Experts on liability law and the firearms industry say the information tracing gun sales may give the plaintiffs their best chance at trying to prove what they say is a "hear no evil, see no evil" policy by gun makers toward the distribution of their products. The information, gathered by the bureau when it traces guns at the request of law enforcement officials, shows the path of guns from manufacturers to specific wholesalers and retailers and then, in many instances, to shootings. "The trace data is the Rosetta stone of following gun crime," said Jim Kessler, policy director of Americans for Gun Safety, a group that supports gun rights and stronger laws to limit improper uses of firearms. The federal government has long resisted release of the information, saying it could be harmful to each of more than one million criminal investigations reflected in the database. The Justice Department is now asking the United States Supreme Court to review a ruling in a Chicago case that would release the same information under the Freedom of Information Act. On Sept. 27, after an agreement in United States District Court in Brooklyn, the government turned over the information to the National Association for the Advancement of Colored People, which filed a suit against the gun industry in 1999. In a court hearing yesterday, lawyers agreed to begin the trial in February or March. Lawyers for the firearms bureau declined to comment on why they agreed to release the information. But lawyers involved in the case said the judge, Jack B. Weinstein, had indicated that he was likely to give the information to the plaintiffs as part of their discovery request. The bureau then made its unusual deal to provide the information, but insisted on a court order requiring that no identifying details be released, even during testimony in the case. Lawyers for the gun industry said the data would not establish any liability because it could show only that manufacturers and their distributors sell a legal product through legal means. "What the plaintiffs are trying to do is bootstrap a case out of a misuse of data," said James P. Dorr, a Chicago lawyer who represents Sturm, Ruger & Company, one of the country's largest gun makers. But as word spread of the agreement by the bureau to provide the information in recent days, many experts said the legal battle could be a watershed for the lawsuits against the gun industry. Anthony J. Sebok, a professor at Brooklyn Law School who has written about the gun cases, said the new information could build a devastating case against the gun industry. But he also said that if the plaintiffs fail in the Brooklyn case, that could be a setback for all the lawsuits across the country. "It could end the campaign to use litigation as a method of achieving gun control," he said. Elisa Barnes, the chief lawyer for the N.A.A.C.P. in the Brooklyn case, said the 11 years of gun-sales data she obtained from the federal government is being analyzed by experts on marketing, the gun industry and statistics who are working with her on the case. In filing the suit in 1999, the N.A.A.C.P. said its goal was "to protect the well-being and security of its membership, which has been disproportionately injured" by illegal handguns. Some incomplete and dated information from the firearms agency has been available in the past, but Ms. Barnes said she expected the most useful material will be from newly released gun-tracing records from 1996 to 2000. Critics of the gun industry say it may be a gold mine, because more and more thorough investigations of gun sales are believed to have taken place during that period than ever. Ms. Barnes acknowledged that the turn in her case presented a test for the strategy of taking on the gun industry in court. "I think it is the one important moment in this type of litigation," she said. Ms. Barnes was the chief lawyer in the only case against the gun industry as a whole that ended with a verdict for the plaintiffs. That case, also before Judge Weinstein, ended in February 1999, with a finding that nine gun manufacturers were liable for shootings in the New York City region. That verdict was overturned in an unusual appeal that went to New York State's highest court, the Court of Appeals, because the federal court was interpreting state personal-injury law. In its opinion, that court said Ms. Barnes's 1999 case failed, but some lawyers said the decision left the door open to another case with more solid evidence connecting the gun industry to the distribution of guns used in crimes. Liability, the court said, "should not be imposed without a more tangible showing that defendants were a direct link in the causal chain." Ms. Barnes said the new case will provide that tangible evidence. But lawyers for the 165 gun makers and distributors named as defendants have said that her arguments are flawed. Timothy A. Bumann, a lawyer for a half dozen of the companies, said one weak point is Ms. Barnes's claim that the firearms bureau's data will prove that manufacturers whose guns regularly end up in illegal uses had a reason to know how that occurs. Mr. Bumann said the fact that the bureau keeps its information confidential would undercut any argument Ms. Barnes makes to the jury. "If it's never seen the light of day before," he said, "how are the defendants supposed to have reacted to it?" Critics of the gun industry have long argued that manufacturers know how many of their guns are traced by the bureau, because the bureau contacts the manufacturer to begin each trace. Ms. Barnes made several strategic decisions that make the current case different from her 1999 case. Instead of seeking damages for the families of gun victims, for example, the current case seeks an injunction that would establish new restrictions on the marketing and distribution of handguns. Although the trial is expected to include a great deal of evidence about statistical and marketing issues, Ms. Barnes said she would call some members of the N.A.A.C.P. who could testify about the legacy of gun violence. One of them is scheduled to be Gladys Gerena, whose 16-year-old son, Shaun, went to the store one day in Williamsburg, Brooklyn, to buy a sandwich and never came home. Neither the gun nor the man who shot him to death on Sept. 1, 1995, has been found. In an interview, Ms. Gerena said she was taking part in the suit to try to establish some accountability. "I don't think anybody should make money from people dying," she said, "and they're dying because of these illegal guns on the street." http://www.nytimes.com/2002/10/05/nyregion/05GUNS.html?ex=1034826341&ei=1&en=d98d77a9425f4a3a HOW TO ADVERTISE --------------------------------- For information on advertising in e-mail newsletters or other creative advertising opportunities with The New York Times on the Web, please contact [EMAIL PROTECTED] or visit our online media kit at http://www.nytimes.com/adinfo For general information about NYTimes.com, write to [EMAIL PROTECTED] Copyright 2002 The New York Times Company <A HREF="http://www.ctrl.org/";>www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance—not soap-boxing—please! 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