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Targeting gun makers
Posted By Geoff Metcalf On 04/07/2002 @ 1:00 am In Front Page | Comments Disabled
Editor’s note: Following the trend of municipalities that sued the tobacco industry, some cities are now suing gun manufacturers in an attempt to recover costs from gun-related crimes. Lawrence G. Keane, general counsel for the National Shooting Sports Foundation, recently discussed these lawsuits with WorldNetDaily’s talk-radio host Geoff Metcalf. Boston was one of the first cities in the country to file such a lawsuit in 1999. However, Boston recently abandoned the litigation, while Jersey City, N.J., filed a similar lawsuit. The National Shooting Sports Foundation is the firearms industry’s trade association and is a defendant in the Jersey City lawsuit, as well as several others.
Metcalf’s daily streaming radio show can be heard on TalkNetDaily weekdays from 7 p.m. to 10 p.m. Eastern time.
Q: Lawrence, what is the deal with Jersey City?
A: I think what happened in Jersey City, the day after Boston abandoned its litigation, is essentially a media stunt by Dennis Hennigan and his organization. Dennis Hennigan and the Brady Center were among the lawyers representing the city of Boston. Clearly the city of Boston has rejected his counsel and chosen a more productive and mature path of cooperation and rejected the confrontational model that is advocated by Mr. Hennigan.
Q: It’s also the expensive model. It cost Boston about a million bucks.
A: It cost them a large sum of money, no question about it. It will cost Jersey City as much, if not more, to pursue this litigation. We are surprised and disappointed that they are choosing time-consuming, expensive litigation rather than following Boston’s leadership to embrace cooperation and communication as the best way to achieve a goal that, frankly, we share with Jersey City. That goal is to reduce the criminal and accidental misuse of firearms.
Q: Something like 21 cities chose this litigation route. How many have already been shot down by the courts?
A: There are 24 lawsuits that have been filed. Ten lawsuits have already been dismissed. Several of the cases are on appeal. Importantly, every single appellate court that has ruled on municipal firearms litigation has come out in favor of the industry and upheld the dismissal of the cases, including three state supreme courts. And in the case of the New Orleans lawsuit, the United States Supreme Court refused to hear the appeal. The appellate courts have utterly discredited the notion now being pursued by Jersey City that manufacturers of legal, highly regulated, non-defective products are somehow responsible for criminal misuse of firearms.
Q: This is basically a products liability scam, isn’t it?
A: It’s an attempt to distort product liability law beyond recognition, and the attempts to do that have been unsuccessful so far, both in the municipal litigation context and in non-municipal lawsuits. In fact, just recently, a federal judge in Los Angeles dismissed a case that Mr. Hennigan was involved in that arose out of the Jewish daycare shooting a few years ago. In that case, the victims sued the manufacturers of the firearms that were used in the shooting spree. The court threw out the case and said you can’t sue the manufacturers.
Q: This is like a family suing Ford Motor Co. if a hit-and-run driver hits and kills somebody.
A: It’s very much like that, or a drunk-driver incident. You may have a cause of action against the drunk driver just as you would have a claim against somebody who acted negligently with a firearm or a criminal. But you certainly wouldn’t be able to sue Budweiser for the acts of a drunk driver, anymore than you should be able to sue a gun manufacturer when somebody intentionally misuses the product or negligently misuses the product.
Q: What is fascinating is that Jersey City would precipitate an action in the wake of the history that precedes them. I mean, you’ve got 10 dismissals. The Supreme Court doesn’t want to play. Given the political climate, it doesn’t make sense that Jersey City would enter into this litigation path.
A: This is the first municipal litigation to be filed since June of 2000. It has been almost two years since any other city filed a lawsuit. We are surprised for precisely the reasons you raise – particularly that they did this with the full knowledge of Boston’s case. Boston’s lawyers had already conducted discovery, had seen literally millions of industry documents, taken dozens of depositions of corporate executives from presidents to people that design firearms, to people who market and sell them and at the end of the day. After exhaustive, intensive, comprehensive discovery of the industry, Boston concluded and acknowledged in the statement they filed with the court when they moved to have their case dismissed that the industry is committed to seeing a reduction in crime, has a long-standing and genuine commitment to accident reduction and assists law enforcement in their efforts to combat the criminal acquisition and misuse of firearms.
Q: Forgive the pun, but is it safe to say Boston couldn’t find a “smoking gun”?
A: Boston has seen the documents and found no smoking gun. It realizes that the industry shares the same goal that Boston has. And it understands that the best way to achieve that goal is to work with the industry in a mutual, cooperative effort and to avail itself of the industry’s long-standing safety programs – many of which have been around for decades – and not to spend money on lawyers.
Q: It wasn’t their money, it was only taxpayer money. What the heck – it was only about a million dollars.
A: Think of all the police overtime, or new cops that could have been hired, or jail cells that could have been built, or court personnel that could have been hired to prosecute gun crimes. Think about all the money the industry spent on lawyers for the Boston case that could have been spent on additional safety efforts, more free locks, more free firearms-safety education material, more money on research and development for the products. All of that went to lawyers. None of that went to do anything good. Boston now realizes their mistake. We commend them for their leadership in understanding that the lawsuit was a mistake. We are disappointed by Jersey City, which is taking Mr. Hennigan’s advice and going down the wrong path. At the end of the day, if they are able to take the discovery that Boston has, they will see the same documents Boston did. They will question the same witnesses Boston did. And they will also conclude, at great expense to the taxpayers of Jersey City, that the industry is committed to safety and is committed to helping law enforcement. They will find the industry is not the evil they pretend it to be in their lawsuit.
Q: I’m curious if you folks are aware of any complicity on the part of some of these other cities that may have reached out to try to influence Jersey City to enter into the fold.
A: I wouldn’t be aware of that. I would say, with one exception, every case that was filed was filed by a Democrat mayor. The only Republican mayor to sue the industry was Rudolph Giuliani. His case has now been voluntarily stayed while they await the appellate court decision on Elliot Spitzer’s case against the industry, which was thrown out some months ago. He has appealed that case.
Q: Is the shooting industry going to be initiating any litigation against any of these municipalities who have been harassing you guys?
A: There is a Heritage Fund that has been established. The purpose of the Heritage Fund is basically twofold. One is to help communicate the industry’s position on a variety of issues and to reclaim the rightful position in America of the firearms industry. The other portion of the fund is dedicated to assisting in the defense of these politically motivated frivolous lawsuits. Individuals can contribute to the Heritage Fund in a number of ways. They can make direct financial contributions or they can also buy products from Heritage Fund members like Taurus and others, such as Smith and Wesson, which has rejoined the Heritage Fund. If they go to their firearms dealers, they should ask to see products by Heritage Fund members. There are additional Heritage Fund products that are in the marketplace, and portions of the sales of those products go to help the industry’s defense against this litigation.
Q: What kind of congressional support is the shooting industry getting? Even the Democrats acknowledge that, arguably, Al Gore’s flip flop on the Second Amendment and gun rights cost him the election.
A: I think the Democrats and Gore’s advisers, including former Clinton Press Secretary Joe Lockart, have publicly conceded that their position on gun control cost them the election. It cost Gore his own home state of Tennessee. There is no question that is the case. In the House of Representatives, there is a bill pending by Rep. Stearns of Florida that has, at last count, 211 cosponsors in the House – a handful away from having a full majority co-sponsoring the bill.
Q: What is the purpose of the bill?
A: The purpose is to federally pre-empt this frivolous litigation. So we are very encouraged that right now that almost a complete majority of the House has cosponsored this legislation.
Q: The trial lawyers associations must be going nuts.
A: I think the trial lawyers – the smart ones, anyway – have seen these cases are going nowhere. This is not tobacco. This is not like some litigation against drug companies. The industry is going to fight these cases. The industry will not settle these cases.
Q: But Lawrence, from the trial lawyers’ perspective, that’s fine. If they’re collecting their billable hours from the municipalities, do they really care if they win or not?
A: In some cases, they are not getting paid. They have signed up cities on a contingency-fee basis, meaning they would get a percentage of any recovery. The industry has made it absolutely clear we will not settle any one of these cases. We will take every one of these cases to trial, and we will win those cases. I again commend the mayor of Boston for having the courage and leadership to recognize that his lawsuit was a mistake, to dismiss his lawsuit and to engage in a mutually beneficial cooperative relationship with the industry that will have real, positive results.
Q: What about the other pending municipal lawsuits?
A: I would hope other cities that have sued the industry – including San Francisco, Los Angeles, Los Angeles County – would look at the Boston document that was filed with the court and see that as a model for progress. They should consider whether they are spending their time and energy and taxpayer money wisely pursuing such litigation. Boston has seen all the documents. Boston has taken all the depositions. And at the end of the day, after three years of discovery, they have acknowledged that the firearms industry has a genuine and long-standing commitment to reducing accidents, to cooperating with law enforcement to see a reduction in the criminal misuse of firearms. The industry’s firearms programs are credited with reducing firearms accidents to their lowest level they have ever been since record keeping began in 1980.
Q: Have you heard about this latest legislative effort from California state Sen. Don Perata, in which he proposes a 5-cents-per-cartridge sales tax?
A: This is the first I have heard of that. It is the silliest thing I think I have heard today.
Q: Given the reality check the Democrats suffered in the last election, you might think they would settle down a little instead of pursuing these politically correct hiccups.
A: It’s a free country. The First Amendment protects people and allows them to have misguided thoughts.
Q: Like Voltaire said, we will defend to the death their right to say this stupid stuff. But this Perata thing seems dumb even by his standard for legislative abuse. Please explain to our readers, as the general counsel for the National Shooting Sports Foundation, who you folks are. As a general rule, whenever a gun-rights issue erupts, people expect (often incorrectly) the NRA or Gun Owners of America to take care of it. What is the National Shooting Sports Foundation?
A: The National Shooting Sports Foundation is the firearms industry’s major trade association. We have approximately 1,900 members, including large firearms manufacturers, ammunition manufacturers and companies that manufacture, distribute and sell shooting-sports related products. We advocate and advance the industry position on a wide variety of subjects, including wildlife conservation, gun-control issues and the like.
Q: I’ve always liked your organization. I attended an event a couple of years ago you put on at Black Water in North Carolina. A lot of people aren’t aware of you guys, and I get flooded with e-mail from folks who, depending on the phase of the moon, are ticked off at or frustrated with the NRA for not doing what they want done.
A: The NRA is a consumer-based organization. We are an industry trade group. We have some individual members, but our membership is primarily comprised of retail firearms dealers, distributors, manufacturers, etc. We have a wide variety of firearms-safety education programs and initiatives, including an award-winning, industry-sponsored program known as “Project HomeSafe.” The project was recently awarded a grant of $5 million from the U.S. Justice Department. Project HomeSafe is a program in which we distribute firearms-education safety kits all across the country. Part of that kit includes a free locking device. We have a number of other programs. We provide firearms-safety literature and videos to school groups and to schools all across the country. We have programs in which we cooperate with law enforcement and the Department of Alcohol, Tobacco and Firearms – most notably, a program we developed in conjunction with the ATF called “Don’t Lie for the Other Guy.”
Q: That’s obviously not a congressional program. What is it?
A: It is a program designed to help ATF train and educate firearms dealers in how to identify and deter what are called “straw purchases.” Such transactions involve somebody who comes in and purchases a firearm not for themselves, but for a third person prohibited by law from purchasing a firearm. That is one way ATF has identified that people will illegally acquire firearms.
Q: Kind of like what Sarah Brady has been getting heat for.
A: I’ve read those articles, and I don’t know all the details and the facts, but the concept that you are purchasing a firearm for somebody else who is not permitted to acquire it themselves for some reason – prior felony conviction or whatnot – that’s a program for which we have received a grant from the Department of Justice, as well. We put on programs and seminars with ATF around the country. ATF puts on educational seminars for dealers on a wide variety of issues, including straw purchasers and record keeping, to make sure that they are properly keeping their records about the sales of firearms.
Q: What else?
A: We also have a government relations office, and we actively speak with members of Congress that impact and affect our industry or our industry members, both state and federally. We have regular quarterly meetings with the Bureau of Alcohol, Tobacco and Firearms to address various issues and to improve an ongoing dialog on issues of mutual concern, such as record keeping. Recently, there was a situation that developed where ATF implemented a new form that is required to be filled out by individuals when they purchase a firearm. It is known as Form 4473. Because of changes in law with respect to non-immigrant aliens and with the heightened concern on that issue since Sept. 11, ATF adopted a new form, and there was a snafu in getting the form out to the dealers. We worked with ATF to solve that problem so that dealers could sell firearms, and consumers could purchase firearms, all across the country while the new form was being implemented.
Q: You are also a target of opportunity for these city lawsuits.
A: We are regrettably a defendant in most of the municipal litigations. Apparently, we have been named as a defendant in the Jersey City case. So a lot of our time and attention is directed now toward dealing with these litigation issues.
Q: Of those 10 dismissals out of the 24 lawsuits, at what level were they? You mentioned a couple of appellate cases.
A: There were 23 – now 24 cases. Ten of them have been dismissed. Six or seven have been fully and finally adjudicated, meaning they appealed, an appellate court ruled …
Q: Stick a fork in them – they’re done.
A: They’re done! Bridgeport was affirmed by the Connecticut Supreme Court. Miami was affirmed by the Florida appellate court. Miami tried to appeal to the Florida Supreme Court, but the appeal was denied. New Orleans was affirmed by the Louisiana Supreme Court, and the U.S. Supreme Court refused to hear an appeal. Camden County’s case in federal court was dismissed. Camden County appealed, and the United States Court of Appeals for the 3rd Circuit in Philadelphia upheld the dismissal. Philadelphia’s case was dismissed by a federal court judge in Philadelphia. They appealed, and that case was upheld by the 3rd Circuit again. The Atlanta case was dismissed recently by the Georgia Court of Appeals. Atlanta chose not to attempt to waste any more taxpayer money and did not appeal.
Other cases that were dismissed but which are currently on appeal include Chicago and the Cincinnati case, which was affirmed by a mid-level appellate court. That case is now before the Ohio Supreme Court. The Gary, Ind., case was dismissed, and it is being appealed. The Boston case is the first case to be voluntarily discontinued, and we are hopeful that other cities – including the California cities – will follow Boston’s leadership. They should look at the document which Boston filed with the court as a model for cooperation and the path forward. They should reject confrontation and embrace cooperation.
Q: You have made several references to that Boston document, encouraging other cities to read it. If our WorldNetDaily readers want to look at it, is it available without schlepping to some Boston courthouse?
A: Yes. Your readers can find it linked on our website. Our press release is there, and the statement that the City of Boston filed, as well.
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