A FEW YEARS OF PRETRIAL maneuvering passed, and suddenly New York's corporation counsel, Michael Cardozo, had a big problem on his hands. The gun industry's motion to dismiss the city's case had been rejected by Weinstein. While this virtually ensured that the case would soon be the first of its kind to go to trial, it also seemed to prompt the white-shoe law firm that had been helping the city, Weil, Gotshal & Manges, to pull out of the case.
According to the New York Times, Weil Gotshal was spurred to step aside after a Smith & Wesson attorney called a client—one who also happened to be a client of Weil Gotshal. That client then reportedly expressed concern to Weil Gotshal that the city's suit against the gun companies could undermine the client's interests. A Weil Gotshal lawyer told the Times that its client might have a point: that even the appearance of a conflict could leave it open to the charge that it softened its advocacy for the city.
Cardozo had to act fast. His boss, Mayor Michael Bloomberg, was if anything a bigger proponent of suing the gun industry than Giuliani had been. He regularly asks for briefings on the case and frequently plugs it on his radio show. Cardozo called his old colleague Michael Elkin, who's now vice chairman at Thelen, and asked for help. Elkin, who trained to be a social worker before entering law, is today better known for repping clients like Bob Dylan, Billy Joel, and James Taylor against Internet music pirates than for public-interest work.
The request gave Elkin pause—Weil Gotshal's exit read like a cautionary tale of the gun industry's clout. Reluctant to risk a similar fallout from corporate clients, and wary of the damage that might be done to the firm's lobbying practice, some Thelen partners weighed in against taking on the suit. "When you take on such an explosive social issue, there's a chance that you're going to offend a good number of people who can take their legal business elsewhere," Elkin says. "We expected client resistance."
But Elkin was also mindful of the firm's history. He asked Heisse to vet the case, and Heisse decided it was winnable. Indeed, to listen to gun-control advocates, a perfect storm of circumstances surrounds this case. On top of what was implied by Weinstein's NAACP decision, Bloomberg administration lawyers had refined the lawsuit, giving up on monetary damages and instead seeking only industry policing of marketing and distribution practices—an aim that puts a victory more within reach. Perhaps most important, for the first time a jury was likely to see the trace data and related evidence accumulated in other lawsuits; at the very least, the industry's inner workings would get a public airing. "This was a cause the firm had historical connections to," Elkin says. "We were on the right side of the issue, and we felt this case could have far-reaching impact."
Thelen decided to take on the case and named Elkin to head the team. As he predicted, there were business repercussions. One of Thelen's clients, a gun company called Kimber that is not a defendant in the New York City suit, subsequently fired the firm. But to gun-control advocates, Thelen's entry into the case—so far the firm has donated $1.5 million of billable time—has only heightened hopes. "You've got one of the top law firms in the country putting some of their best litigators into this effort," says Jonathan Lowy, another BradyCenter senior attorney. "They're treating this case like they do their most highly paid clients."
IN A CONFERENCE room high above midtown Manhattan, a half-dozen young lawyers on the Thelen team are sitting around a large table. Scores of boxes filled with legal papers are piled floor-to-ceiling. "It's as if they all went to the same deposition prep school," says associate Gabriel Nugent, alluding to how gun company executives seem well trained at evading questions. Nugent remarks on the problem of getting them to submit to cross-examination on the stand. "There's no way that any of these guys are coming to New York," he says.
Elkin, wiry and energetic, challenges his associates to turn a negative into an advantage. "The issue of compelling testimony is a double-edged sword for the defendants," he says. "If they can't make it to trial, there's something you can color for the jury. Say, 'Look, if this person cared so much about making sure his side of the story was adequately presented, they would have made the trip here. It's not too difficult in this day and age to get on Jet Blue and get your butt before a federal court.' There's a certain arrogance to not showing your face before a jury." As his listeners nod, Elkin tries to elevate the discussion from questions of process. "We're asking an industry that has not regulated itself in order to reduce harm and danger to society to take some responsibility," he says. "You are all doing your level best to fulfill a very important social mission. And I want to thank you." Moments later, his charges file out, visibly energized.
In different conference rooms, gun company lawyers are working on their own aggressive strategy. The industry has hired 19 law firms to fight the city. It's also enlisted its allies in Washington to protect it from the rising tide of litigation, including the New York suit.
Congress is currently considering a far-reaching bill—sponsored by Rep. Cliff Stearns (R-Fla.) and Senator Larry Craig (R-Idaho), who's a board member of the NRA—that would grant the entire firearms industry immunity from a broad swath of liability lawsuits. Similar legislation passed the House in 2003 but was rejected by the Senate last year. That, of course, was a different Senate, and at press time the bill's passage seems likely, though what impact it could have on New York v. Beretta remains up in the air. Both sides say they expect to go to trial, suggesting that Weinstein could declare the law unconstitutional or find that it doesn't apply retroactively. "Judge Weinstein is a very creative guy," says NSSF counsel Keane. "He will find a way to make sure this case goes to trial."
Meanwhile, pretrial skirmishing, especially around the critical trace data evidence, has been heated. New York tried to get its hands on even more data than the NAACP had wrested from the ATF before its case died. But industry—backed by government allies—struck back repeatedly. In 2004, Rep. Todd Tiahrt (R-Kan.) even inserted a provision into an appropriations bill barring the use of subpoena power over ATF trace data. The agency dragged its feet on coughing up the information until June of 2004, when Weinstein ruled that the data had to be released to plaintiffs' lawyers.
The prospect of exposing such records at trial is already a victory, say gun-control advocates. "Not only will it identify the worst gun dealers in America, but it will also show beyond any doubt that the gun industry is profiting from sales to criminals carried out through those very same dealers," says the Brady Center's Brian Siebel.</b>
Still, the city's legal hurdles are considerable. As there's no precedent linking industry sales practices to a public nuisance, "the first challenge is to show that the defendants owe the plaintiffs a legal duty, not just a moral or ethical one," says Ralph Stein, a professor at Pace University School of Law who's followed the case. Ironically, another disadvantage that the city faces is the perception that New York City is now very safe, compounded by the fact that some in the jury—the jurisdiction includes suburban (and fairly conservative) areas like Nassau and Suffolk counties—may be well insulated from violent crime. "We may not be able to say that the average commuter is feeling the nuisance," concedes Nugent, who won't get into too many strategic details about the trial. Another potential weak spot in the city's suit is that it doesn't center on the sort of tragic plaintiff juries respond to. "It has to bring home to the jury that the city's action, if successful, would protect all New Yorkers, starting with these 12 people," says Stein.
Thelen partner Thomas Lane insists that the city will bring drama to the courtoom. "We're certainly going to use specific stories about gun violence victims," he says, though there's a question as to what Weinstein will let in. Regardless, under the public-nuisance claim, the city doesn't have to prove that the industry intended any harm, or colluded, or had any particular motive like increasing its profits. It only has to prove that the defendants' conduct contributes to or maintains a public nuisance. And there, Lane stresses, "a dramatic statistical pattern" will make the city's case.
Further help may come from testimony by at least one insider. Robert Ricker, a onetime NRA and trade association official, testified in the NAACP lawsuit that the industry is deliberately ignoring the problems posed by unsupervised dealers, saying, "if the industry took voluntary action, it would be admitting responsibility." Plaintiffs may also introduce an article penned by a firearms dealer, Robert Lockett, for the industry trade magazine Shooting Sport Retailer. "Let's just get down and dirty. We manufacture, distribute, and retail items of deadly force," Lockett wrote, adding that arguments "regarding lack of accountability [have been] pretty flimsy. Today, they are tenuous at best."
Gun companies haven't disputed that their products are used to commit crimes. But, says Glock attorney Renzulli, "just because there are guns available to bad people does not mean there is liability." Dealers get duped—something manufacturers and distributors can't prevent—and if guns used in crimes get traced back to them, it merely reflects that they do a large volume of business. Indeed, Nugent says he expects the industry to argue that, as "one big family," it doesn't tolerate dirty dealers.
The NSSF has already starting spinning a potential court loss, attacking Weinstein's credibility. The 84-year-old judge, famous in legal circles for wrestling long-stalemated litigation over Agent Orange to settlement, is known for forgoing a robe, sitting among lawyers instead of on the bench, and taking bold, even activist, positions. Since the suit was filed, the NSSF has attempted to turn him into a bête noire of gun owners, depicting him as a zealot on a "decade-long crusade to destroy the firearms industry."
"If the city wins, it will only be because of Weinstein," says Keane, the NSSF general counsel. "His decisions all but ensure that the victory would later get overturned by an unbiased appellate court." That's overstating the case, but Pace law professor Stein agrees that the city's biggest hurdle may be with the appellate court and not the jury. "Judge Weinstein, while a wonderful judicial curmudgeon, has been reversed on appeal quite often," he notes.
Twelve years after the tragedy that still haunts his firm, and as he prepares to launch what may be the most significant case in the history of gun litigation, Michael Elkin is confident of both short- and long-term victory. "These manufacturers have escaped responsibility for far too long," he says. "Their day of reckoning is coming."