Page 2 of 3

NYC Mayor Michael Bloomberg Tries to Sue Gun Manufacturers For Trafficking

Could New York vs. Beretta, prompted by a long-ago violent day in San Francisco, help rid NYC of illegal guns?

One of those who emerged a changed man from that Thursday 12 years ago was John Heisse, a Pettit lawyer who's now a partner in the San Francisco offices of Thelen, Reid & Priest, a large national firm. Tall, white-haired, and patrician, Heisse seems the picture of well-groomed composure. But as he describes those long-ago moments, he turns his face away, his eyes still haunted. "I stepped over the body of a kid—a law student who had worked for me," he says, his voice cracking mid-sentence. "I had several friends who died." After the shootings, Heisse found a new cause in antigun activism, cofounding the Legal Community Against Violence. When Pettit dissolved in the mid-'90s, Heisse and a dozen other lawyers who'd survived the shooting were picked up by Thelen, which over time came to see the tragedy as part of its own institutional history.

In 2004 that history prompted Thelen to team up with New York Mayor Michael Bloomberg to wage a landmark lawsuit against more than three dozen gun manufacturers and distributors. The companies—including Beretta, Smith & Wesson, Glock, and Browning—constitute virtually the entire firearms industry. New York City's case is built on the theory that gun companies know their products end up being trafficked to criminals and could take easy steps to stop it, but fail to do so. Thelen has been working pro bono on the case for a year, donating seven lawyers to the effort full time, and even putting its vice chairman, Michael Elkin, in charge of the case.

When a jury starts hearing New York v. Beretta this fall in Brooklyn Federal Court, it will be the first time such a lawsuit brought by a municipality has made it to trial. A victory would be such a significant feat that GOP members of Congress, in a move some observers think is aimed at this lawsuit, are pushing for sweeping liability protection for the industry. Nonetheless, gun-control advocates see in the New York case a real possibility to force manufacturers to change the way they market and distribute their products. Even a partial victory could embolden other jurisdictions to bring cases and erode the industry's clout, just as early successes cracked Big Tobacco.

Attorney John Heisse survived the shooting at this building that claimed the lives of several colleagues. Twelve years later, his firm is taking on the gun industry.
Attorney John Heisse survived the shooting at this building that claimed the lives of several colleagues. Twelve years later, his firm is taking on the gun industry.


IT'S A PARADOX that has frustrated law enforcement agents for decades: New York City has some of the strictest gun laws in the country—you can't buy a firearm if you don't have a license, are under 21, a felon, or have a mental disorder—yet thousands of such off-limits customers wind up with weapons, and the overwhelming majority of guns used to commit crimes were originally sold in perfect compliance with the law.

The explanation, experts say, is that traffickers import guns to New York, where the tight laws and, at least in certain areas, high demand drive up the price of illegal firearms. Traffickers know they can reap huge profits buying guns in the South, where prices are low and look-the-other-way dealers proliferate. New York v. Beretta alleges that the industry is well aware of the middlemen—gun shows, kitchen-table dealers, straw purchasers, and buyers who purchase in obviously excessive quantities—through which traffickers get the Attorney John Heisse survived the shooting at this building that claimed the lives of several colleagues. Previous spread: Guns used in New York City crimes. guns bound for the city's black market.

However traffickers procure them, many guns ultimately used in New York crime travel along I-95, a highway that New York cops have dubbed the "Iron Pipeline." Running from Florida up the East Coast, "it exemplifies the big problem New York faces," says Joe Vince, a 28-year veteran of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and an expert witness for the plaintiffs. "In Ohio, for instance, the majority of guns come from in-state. But in New York, people are loading up on guns hundreds of miles from the city. How can the cops police that? It's ATF who has jurisdiction over interstate trafficking, but ATF only has 2,000 agents for 50 states. So very few traffickers are ever caught or prosecuted."

By the late '90s, gun-control advocates and municipal officials across the country started examining how corrupt dealers who feed such black markets get their goods. They found that the vast majority of gun dealers are law abiding, meaning that the payoff from zeroing in on the dirty ones could be disproportionately great. According to one widely cited study published by the Clinton administration in 2000, just 1.2 percent of dealers accounted for more than 57 percent of the guns used in crimes nationwide. If gun companies stopped their products from getting into the hands of such dealers, far fewer guns would flow into the local black markets—leading, it's hoped, to a commensurate drop in violent crime.

Beginning with New Orleans in 1998, a number of municipalities struck out in a bold new direction, suing gun manufacturers and distributors to recoup the medical and law enforcement costs of gun violence. Many built their cases around "trace data" compiled by the ATF. When a gun is used in a crime and recovered, the ATF retraces the path of the weapon from manufacturer up through any transactions conducted by licensed dealers. This information is not publicly available, but manufacturers have had access to it, which could enable them, adversaries say, to gauge which dealers are selling guns eventually used in crimes. They could be monitoring problem dealers and even cutting them off, but so far, few of them appear to have done so. That failure, some of the lawsuits have charged, amounts to callous, even willful negligence—the result of a reluctance to cut into profits made off of corrupt dealers. By this calculus, the actions of the industry lead to a grimmer conclusion: that gun companies actually help to create a black market. An analysis of ATF data performed by the National Economic Research Association found that 11 percent of guns sold in 1996 had been used in a violent crime by 2000. "It's become obvious that the crime gun market has been a huge segment of the gun industry's sales," says Brian Siebel, a senior attorney at the Brady Center to Prevent Gun Violence. "It's been a share of the market they haven't been willing to surrender."

Industry spokespeople insist that manufacturers aren't trained in law enforcement and are "no more responsible for criminal misuse of their product than Budweiser is responsible for drunk driving," in the words of Lawrence Keane, general counsel of the National Shooting Sports Foundation (NSSF), a well-funded industry group. What's more, gun companies have "done more than any other industry" to prevent bad sales and promote safety, says John Renzulli, a lawyer representing Glock and Browning, citing a program to educate dealers about straw purchases.

Rudolph Giuliani launched New York's lawsuit in 2000. He'd just dropped out of the New York Senate race and, no longer beholden to the NRA or national Republicans for financial contributions, he was more concerned with burnishing his legacy of battling crime. To that end, the suit was perfect. The legal term of art for the large-scale injury and death that resulted from industry's lack of self-policing was decidedly understated: the gun companies were creating a "public nuisance." The city's top lawyer (known as the corporation counsel) explained in a press conference that "our major claim would be that the gun industry is guilty of negligent marketing and distribution." He vowed to recoup "tens of millions of dollars and maybe more."

Despite the big promises, little at the time indicated that New York had much chance of winning. A number of municipalities had brought similar cases, but none had succeeded in getting to trial. Individual victims of gun violence had won scattered cash settlements here and there, but they hadn't achieved anything approaching industry reform, and most had used different theories of liability. The year before, the NAACP had filed a public-nuisance suit on behalf of its members—in effect, potential victims of gun violence—trying to force a change in the industry's marketing practices, but that effort was not yet far along.

Indeed, the gun companies seemed confident that legal precedent was on their side. "Time after time, the courts have held that a manufacturer of a safe, nondefective product is not responsible for its criminal use," said Bob Delfay, then-president of the NSSF, when the New York suit was filed. "We're hoping Giuliani will regain his sanity by morning."

Delfay was cocky, but then again, the suit was far from a slam dunk. New York City had to make a different kind of argument from plaintiffs in traditional liability suits, in which manufacturers are held responsible for defective products, rather than ones that work all too well. Judges have shown resistance to cases that smack of regulating an industry through the courts (which is why a state appeals panel would later toss a similar suit brought by New York Attorney General Eliot Spitzer). Gun companies had latched on to an argument that, without documented proof to the contrary, seemed plausible—namely, that their guns were sold and resold so many times en route to the streets that they couldn't know for sure which dealers were corrupt.

To counter this argument, the NAACP had subpoenaed the ATF trace data from 1995 to 1999. The industry found an ally in the ATF, which refused to comply with the subpoena. But the courts were another matter: In 2002 Judge Jack Weinstein, who heard the NAACP case in Brooklyn Federal Court, directed the ATF to turn over the information.

Saying that the NAACP couldn't show that its members had suffered a different kind of harm from industry practices than other New Yorkers, Weinstein subsequently dismissed the group's case, meaning that the ATF trace data would, for the time being, remain privileged. Nonetheless, Weinstein's decision appeared to set a precedent for future plaintiffs that such records could be pried loose. More important, he was sympathetic to the public-nuisance argument, writing in his opinion of the industry's "failure to take elementary steps" that "would have saved the lives of many people." Indeed, he found that while the industry had improved its practices in recent years, "these steps are late, too few and even now insufficiently embraced by most individual defendants to eliminate or even appreciably reduce the public nuisance they individually and collectively have created."

Among those who took particular interest in Weinstein's decision were the city lawyers arguing New York's lawsuit. Under court rules that steer cases to judges who've heard related litigation, the judge hearing New York City's case was none other than Jack Weinstein.

Page 2 of 3